In Re Application of the President's Commission on Organized Crime. Subpoena of Lorenzo Scaduto

RONEY, Before JOHNSON, FAY and Judges. Circuit JOHNSON, FAY Judges: Circuit appeal This of important raises a number questions regarding composition powers of the President’s Commission on Organized (the “Commission”). Crime It arises from an order of District for the Southern District of Florida, holding appellant in con- Scaduto tempt testify for his failure to before the H93 2(a), appeal, Exec. Order On Scaduto raises 48 Fed. Commission. Reg. 34,723 1) following issues: whether III pointment of two Article composed The Commission is of nineteen Congress to two members of the Commis- members, including the Irving Honorable doc- Kaufman, sion violated the R. of the United States trine; 2) appellant validly Circuit; whether invoked Appeals for Court of the Second Stewart, privilege against his Fifth self- Potter Amendment Honorable a retired of Su- consequence incrimination a of a reason- Associate Justice the United States as Court; preme 3) the Honorable Strom Thur- foreign prosecution; of wheth- able fear mond, a member United States Sen- immunity upon appellant er the conferred ate; Rodino, Jr., the Honorable Peter a approval by invalid because of its member of the United States House of place in Acting Attorney Assistant Representatives; persons and other General; 4) Attorney of whether experience in broad law enforcement and corpus application a writ of habeas ad for 1(b) justice. criminal Pursuant to section by an Assistant United testificandum of Executive Order which directs Attorney Attorney instead of States designate President shall a “[t]he 3; 98-368, 5) P.L. General violated among Chairman from the members of the holding in the district court erred whether Commission,” Reagan designated President statute, contempt 28 U.S.C.A. civil Judge Kaufman as Chairman. § 1826, proceed- applicable to instant To to fulfill enable the Commission its ing. responsibilities under Executive Order I. BACKGROUND 12435, Congress passed No. 98- Pub.Law 28, 1983, July Reagan is- On President Stat. which conferred a 12435, which estab- sued Executive Order variety of the Commis- aid Commission, in accordance with lished the investigate report and sion’s mandate to Advisory Federal provisions organized 98- crime. Under Public Law amended, (“FACA”), as Committee Act may public hear- the Commission hold 2(a) app. 2, Sections 1-15. Section U.S.C.A. ings; requiring subpoenas issue attendance 12435directed the Com- Executive Order produc- and and the of witnesses mission to: information; tion of seek writs habeas corpus and enforcement complete and ad testificandum make a full and national “upon subpoenas, application organized its region-by-region analysis courts; General,” Attorney federal issue crime; define the nature traditional fed- compelling testimony under the orders emerging organized as or- crime well statute, immunity 18 U.S.C.A. Sections eral ganized groups, crime the sources and 6001-05; access and use informa- obtain income, organized crime’s amounts Title III of the pursuant tion obtained organized crime to which uses Crime Control and Safe Streets Omnibus income; develop indepth infor- puts its amended, (“Title III”), as Act participants organized on the mation 2510-20; oth- and obtain U.S.C.A. Sections networks; evaluate Federal crime ... through measures types er of information pertinent to effort to combat laws Or- with the terms of Executive consistent crime[;] the Presi- organized ... advise 1-4, 6(b), 98-368, der 12435. P.L. Sections Attorney General with re- and the dent 490-93 Stat. findings actions which can spect 5, 1985, improve law enforce- the Commission February undertaken On Scaduto, against organized subpoena a appellant directed ment efforts issued prisoner con- confined the United crime[;] make recommendations federal Haute, Indi- Penitentiary at Terre cerning administrative appropriate sixty- serving a improve- currently ana. Scaduto improvements legislative imposed on imprisonment justice. year four term the administration ments pursuant the United States sued November P.L. 98-368 and 18 U.S. for the Eastern District of District Court C.A. Sections 6001-05. Scaduto none- York, following his conviction for var- continued, counsel, New through theless his Drug Act. ious violations privilege. assert a Fifth Amendment pending peal his is now in the conviction evening February 20, 1985, On the Appeals United States Court of compel moved appellant’s Circuit; argument of Second oral Scaduto’s testimony. Early morning on the of Febru- appeal was heard on March 21, 1985, ary hearing was held panel Judge Kaufman did not serve on the Judge motion before At Hoeveler. However, appeal. which heard Scaduto’s hearing, Judge signed Hoeveler an order appeal presently under submission to compelling testify, Scaduto to under the upon the court Kaufman specified. same conditions earlier At judge. as an serves active circuit Judge direction, Hoeveler’s for counsel the response petition by In to a the Commis- immediately a conducted sec- through Attorney sion the United States deposition ond of in conformity Scaduto Florida, for the Southern District of to with the court’s In deposition, order. that presence public at hear- secure Scaduto’s appellant persisted refusing in to answer ings February before on the Commission questions, again the Commission’s assert- 20-21, 1985, Miami, United States Dis- ing privilege a against self-incrimination, Judge trict Joe Eaton issued a writ of notwithstanding the and Commis- corpus habeas ad testificandum. sion orders issued in connection the with 19, 1985, February appellant On filed a deposition. quash subpoena motion to the and writ of After his testify, appellant refusal to testificandum, corpus com- habeas ad and a again brought Judge before Hoeveler. plaint relief, declaratory injunctive Upon upon review record and the in the Southern District of Florida. The motion, Judge Commission’s Hoeveler oral- challenged, alia, complaint inter the consti- ly contempt, pursuant held Scaduto to 28 tutionality of the Commission under the § 22, 1985, February U.S.C.A. 1826. On doctrine, separation powers of and the au- Judge Hoeveler issued a written order of thority of compel appel- the Commission to commitment under 28 U.S.C.A. 1826. testimony light alleged lant’s his of fear II. ISSUES AND DISCUSSION foreign prosecution Italy. of Separation A. of Powers February On Dis- United States Appellant argues composi- that first the trict William M. Hoeveler denied Commission, of tion which includes two Scaduto’s motions and ordered him testi- Congressmen United States Arti- two fy before the Commission or at in camera III Judges, cle Federal violates the consti- private deposition. a fur- Judge Hoeveler tutionally required separation powers, of transcript appel- ther ordered that of by and renders all action sealed, lant’s and that no one performance void. He contends parties that other than the have access it. by legislature judi- members of and the specifically prohibited The court’s order ciary disclosure, of indirect, those executive “law enforcement” either direct or 98-368, foreign sovereign, including activities authorized P.L. which the Italian government. conformity subpoenaing In or- include witnesses and review- with that der, ing intercepted by counsel Commission conducted information electronic surveillance, deposition, appellant separation pow- a of at which was served violates the order, with an compulsion authorized is- ers.1 suggests (or removal) Appellant appointments power, also President legis- appoint lacks federal be a which considered to subset cases, advisory separation powers lators to an executive commission. have addressed two 1) dealing types problems: This claim cases of one has little merit. Those whether member

1195 1, 280-81, 612, 755-56, 96 S.Ct. established U.S. tripartite structure The (1976) White, J.); (opinion of L.Ed.2d 659 conferral reflects the the Constitution States, Humphrey’s Executor v. United powers Presi separate and distinct 869, 874-75, 628-30, dent, 55 S.Ct. Judiciary. and the U.S. (1935). L.Ed. What of our Constitution embraced framers prohibit powers has been construed to the maintenance “Montesquieu’s view legislative, arrogations power to one branch those independence as between branches,” government “disrupt[ proper the executive and ] branches,” liberty. preservation of balance between coordinate to the was essential States, v. Administrator General Ser- Nixon Myers v. United 272 U.S. vices, 21, 25, at L.Ed. Thus U.S. at government “prevent[] or from ac- were departments [one branches] assigned complishing constitutionally accu its ganized principle “[t]he functions,” id. (citing United States Nix- powers legislative, of all execu mulation on, hands, 711-12, 3109-10). 94 S.Ct. at judiciary in the same tive and one, many, minority A view the doctrine has few or wheth also whether structural, elective, more self-appointed, or reflected the Madisonian hereditary, er very per- defini concern that one branch should not be may justly pronounced Immigration Natu mitted most share substantial tyranny.” tion of Chadha, Covert, Reid v. See another. ralization Service 2764, 2789, 1, 1222, 919, 1 960, 77 L.Ed.2d 354 U.S. 77 S.Ct. L.Ed.2d 1148 103 S.Ct. (act J., (1957) power (Powell, concurring giving President (1983) judg alter 317 separation pow- (quoting The Federalist No. ment) law violates of substantive 1961)). ers). Madison) (J. (J. 324 Cook ed. understanding separation of Few cases have considered the extent to of the

This however, not, legislative required judicial members of the powers doctrine has which government may powers traditionally departments of exercise the three branches early branch. Two absolutely independent or “hermeti- associated with another remain Case, (2 Dal.) 408, Haybum’s cases, 2 one another. Nixon v. U.S. cally sealed” from Services, United States v. (1792), L.Ed. 436 and Administrator of Ferreira, How.) 43, (13 14 L.Ed. 42 54 U.S. 53 L.Ed.2d U.S. Nixon, (1851), question of whether addressed the United States (1977); 418 U.S. powers were could exercise which 41 L.Ed.2d courts 94 S.Ct. Haybum’s Case non-judicial in nature. Indeed, administrative appearance the of statute vested the concerned a which agencies combine functions charac- pen- appeals power to settle of of the teristically with two or more courts associated widows, orphans and inval- government claims of departments of demon- sion the ids, Secretary subject by the of legitimate interac- to revision potential for strates the law Congress. and The was among powers the War the interdependence tion or rendering the Valeo, judgment, Buckley v. before See government. amended of President) readily apparent, these fact (usually neither of power As is has branch (or remove) appoint patterns present duties instant case. That the an official whose substantially partake powers a of of branch which ex- powers Commission are member, appointing see Hum- being official is not a very point which is ad- is the ecutive States, 2) supra, and phrey’s Executor v. United part by of his Scaduto in the second vanced who al- of one branch have whether members problem argument; appears to no thus there may res- ready appointed official add to his powers who are to exercise such with officials power ponsibilities partaking of the of duties being appointed by And that the the President. branch, Springer Government see another of powers on legislature confers executive Islands, Philippine through presents no P.L. 93-368 (1928) (under analogue Phillipine of L.Ed. 845 Springer, as it was problem cases as under such Constitution, may legislature not accord President, legislature, who rather than appointees legislative with- executive duties to place. appointed in the first the commissioners power). violating appointments out executive moot, ality provision the Court included in its of but of issue basis two provisions inapplicable case,3 of circuit opinion opinions three courts to the instant protested general the act or refused to but it which had also undertook a examination opin- judicial under it. adjudicate perform claims In these of federal non-ju- ions, jurists Jay Iredell such con- dicial duties which is instructive. ma- separation jority identify categorical that the violated the unable cluded act by judicial prohibition, analogous requiring officers to the and con- “case troversy” requirement, of a task which formed performance no on the official en- powers, gagement Article III part non-judicial the courts’ federal subjecting by stressed, however, by judgments rendered mem- duties.4 The court judicial by branch revision categorical bers absence of constraint on legislative judges, officials executive individual should be understood Ferreira, imply they In pursue branch. United States v. are free to what- appeal non-judicial Court addressed an under statute ever activities wish. Judges by United which directed the States District are constrained the limitations propriety, by for the District of requirement Northern Florida that their adjudicate injury arising non-judicial incongru- claims duties have “such against Spanish ity” action offi- with the function as void would Florida, subject judicial power cers inhabitants to the which had con- been by Secretary ferred, approval Siebold, (10 or revision see Ex Parte 100 U.S. Treasury. Citing Haybum’s Otto) 371, in sup- Case 25 L.Ed. 717 imposed port “guarantees personal the fact that the task liberty” which are nature, upon not of a potential the statute was eonfered citizens liti- appeal gants. lack jur- F.Supp. Court dismissed the at 915. limita- These expressed opinion, It isdiction. how- tions both derive from Article III and from ever, as to whether the violated act the Fifth and Fourteenth Amendments to powers.2 the Constitution. Hansen, F.Supp. they respects

Hobson v. are in factually While some (D.D.C.1967) court), (three judge case, examined distinct from the instant these cases question directly strong a more to the in- support related offer for the proposition case: the extent judges, conferring non-judicial stant to which that functions on acting as judiciary may separa- individuals rather than as mem- members of raise court, may of a per- powers problems. bers undertake the tion of demon- Hobson non-judicial strates, importantly, formance of duties. way Hobson more that the to challenge a to question involved a D.C. statute re- resolve the in individual case quiring that of the Board of is a apply members Edu- to functional standard to similar appointed by cation be United States propounded Dis- that in v. Nixon Administra- Service, Court judges trict for the supra: District Co- tor does upheld imposition lumbia. The court traditionally the constitution- associat- 2. In Chandler v. Judicial Council the Tenth the federal courts of the District of Columbia for Circuit, 74, 1648, III, 398 U.S. powers beyond L.Ed.2d those described in Article (1970), opportunity had II, 2, the Court a similar permits and Article cl. which judi- to determine whether Council was action Congress vest to in the Courts of Law the suggested cial action. While the Court that appoint to "inferior Officers” of the United action, action not Council 398 U.S. States. n. at 88 1655 n. the declined to the matter it found resolve as point aptly 4. This is illustrated the actions of petitioner had not exhausted his administra- Jay Supreme John as Chief of the Court. Justice remedies and was not to tive entitled extraordi- Jay give advisory opinions While declined to again, nary pow- relief. Once Washington, President saw no he constitutional ers issue was not addressed. negotiator bar to his service as with American England treaty that bears his name. See I, relied 3. The Hobson court on Article Section Hansen, supra, F.Supp. at Hobson v. permits Congress cl. which to confer on Will, government on offi- see v. 449 U.S. United States one branch ed with their S. Ct. 66 L.Ed.2d and this branch interfere with of another cials impartiality by many is threatened constitutionally-re- ability perform their judge A who activities Commission. of which in branch quired duties assisting improving charged is with part? a are against organized enforcement efforts standard, it this functional Under adopt pro-government per crime must Commis imposition that the appears obligation spective is to his ill-suited investigatory powers members of sion’s in to be neutral the courtroom. The kind their abili not interfere with does might through of information he uncover constitutionally perform their re ty to investigatory activities of Commis investigatory If activ quired duties.5 their endanger impartiali sion would further his govern them to believe that the ities cause ty. testimony surveyed by If the data and organized losing its ment “war” demonstrate, the Commission were to crime, negative or to take a view example, magnitude that the threat being used law enforcement methods posed by organized greater crime was than it, appear combat this would officials previously suspected, had been a sub ability to as perform their interfere with organized activity stantial amount of crime require does not legislators: their office prosecuted, or was never that law enforce impar subjects approach such with them many parts country ment officials Moreover, investigatory tiality. such while poorly employed which were cho methods essentially executive charac powers are sen, subject inadequate abuse com congressional ter, they beyond are problem, such discoveries could af bat the many congressional committees purview; way approached those judge fect the them investigatory powers to aid given organized suspects crime and law enforce tasks, advisory Com see Senate Select appeared ment officials cases who before Campaign Activi Presidential mittee on Moreover, judge if a could him. even satis (D.C.Cir.1974) Nixon, 498 F.2d ties partic fy separate his himself that he could pow (Senate subpoena granted Committee from his ipation on the Commission investigation) and this purposes er functions, litigants could it not clear to threaten their has not construed been impartiality. in his As equal faith sustain legislators.6 ability perform Wright Hobson Han observed sen, supra: reached A different conclusion must be preserve judicial integrity is need to to those members who are respect just matter of satis- Impartiality is one of more than judges. also federal fying themselves that the environment central, constitutionally-ordained, re- the sufficiently office, free of work which quirements of the federal pay might ap- for their work. Execu- provision mission receive no which One constitutional 3(b). glance upon pear the Section at first to bear tive Order congressmen to undertake executive functions I, clause," “incompatibility Article is the 6, the Article III it is not the case that 6. While prohibits members of cl. which investigatory judges include duties of federal during holding offices their certain federal from may be undertaken of the kind which activities Evans, Signorelli v. 637 F.2d elected terms. Cf. Commission, presi- by judges have served on (New (2d Cir.1980) analogue of incom- York 853 advisory enjoyed have committees which dential resign requiring judges patibility state to clause powers. The Warren similar congressional running office consti- for before Kennedy, which the Assassination of President provision, tutional). language of this But Warren, by for Earl was Chief Justice headed Representative ... or shall "No Senator subpoena empowered to witnesses example, was Authority any pointed civil Office under the to subpoenas. of its and enforcement seek States, have been shall which United however, previ- appears, to have been no There created, whereof shall have the Emoluments composition challenge and ous suggests during time such ..." been increased advisory committee on an executive appointments which con- applies it powers grounds. gressmen pay. Com- receive Members interference enable them administer formation that would through be disclosed honorably efficiently. and Liti- might law his testimony incriminate him under general gants citizenry our must and law, foreign second, that his fear of satisfied. also be foreign prosecution is “real substan J., tial” than (Wright, dissenting). merely speculative. rather F.Supp. partic- 478-80, would seem to bear problems These U.S. 92 S.Ct. 1674-76. Courts of ularly participation Kauf- appeals, including Circuit, the former Fifth man, is both the who Chairman have these followed standards in evaluat judge in juris- and an active ing similar claims. See United States v. problem well-publicized has a diction which Brummitt, (5th Cir.1981), 665 F.2d 521 crime, organized but attitudinal denied, cert. 102 S.Ct. membership which Commission hazards (1982); Tierney, L.Ed.2d 852 In Re presents apply to Justice Stewart as well. (5th Cir.1972), F.2d denied, cert. propounded Under the functional test 35 L.Ed.2d 276 cases, pow- the conferral of such Nixon (1973); (2d Flanagan, In Re 691 F.2d 116 separa- ers on federal violates Cir.1982). The courts have identified a powers. tion of number of factors upon which bear Privilege prong test, second B. Amendment Fifth Zicarelli which Danger Foreign Prosecution include: existing whether there is an potential foreign prosecution of the claim argues justi- Scaduto next that he was ant; charges whether would asserting priv- fied in his Fifth Amendment foreign jurisdiction entitle the to have him ilege immunity because domestic which extradited; and whether there is a likeli upon him had been conferred was insuffi- hood that his would be disclosed protect foreign prosecu- cient him to a foreign government. Zicarelli v. New September 14, tion. On Italian Jersey Investiga State Commission magistrate policeman came the Unit- tion, supra; supra, In Re interrogate Flanagan, ed Scaduto. At the interrogation, time of F.2d at 121. place took at the office of the States Attorney party disputes Neither the fact that the York, for the Eastern District of New testimony sought by the Commissionwould magistrate presented with a Scaduto series foreign prosecution. relevant to Sev- drug trafficking charges and informed questions posed eral of the Commis- outstanding him that there was an warrant depositions sion at Scaduto’s concerned his in Italy. his arrest The issuance of drug involvement traffic between the step such a warrant the first in the Italy, United States and which involvement commencement of proceedings extradition surely would have been of interest to Ital- government. Septem- the Italian At the ian par- authorities. The issue which the meeting officials, ber 1984 with the Italian ties contest is whether there was a “real appeal Scaduto stated that pending his danger” pros- substantial of an Italian right the United States and his exercised ecution, under the standards set forth 26, 1985, January to remain silent. On above. Department State formally denied an extra- argues The by despite Commission request government. dition that Italian charges fact that by have been filed In Jersey Zicarelli v. New State Com- government, Italian is currently extradition mission Investigation, impossible under Article 6 Extradi- 32 L.Ed.2d 234 the Court Treaty tion which states that claim, declined to resolve a similar but held shall granted that Extradition not be when asserting a claimant that a Fifth person sought convicted, privilege necessary has pro- Amendment is to been pardoned, foreign acquitted tect him from the prose- threat of or has served the first, imposed, by cution requested party must demonstrate that the in- sentence

H99 likely “leak” is re- less to information in the for which extradition for the acts by Flanagan manner feared than quested court grand jury. of a district members The request has respective divi- cognizance in the of their involved in who would be cers court however, no provided that sions taking deposition would be ... of Scaduto’s 1200 granted

proval shall be unless the Crimi- D. Attorney Failure of General to Make Application Corpus nal Division indicated that it has no for Habeas Ad ob- Testificandum grant jection proposed to the of immuni- ty argues Scaduto next that the writ of corpus habeas ad testificandum should be 0.178(a), provides and 28 C.F.R. which quashed, contempt vacated, and the order Attorneys may General redele- Assistant application because for the writ an authority gate under 28 C.F.R. their 0.175 Assistant Attorney United States rather respective Deputy to their Assistant Attor- than the Attorney General violates the during neys times when General 98-368, terms of P.L. Section This 3. sec absent. provides tion Although appears no binding there to be A court the United States within the point, precedent on this several well-rea jurisdiction in per- opinions employed analysis have soned vir custody son sought by held is tually identical to advanced may, Commission upon ... application by In Federal Trade Commis Commission. Attorney General, issue a writ of Foucha, (N.D.Ala. sion v. F.Supp. 21 corpus habeas requiring ad testificandum 1973), the language court found the of Sec produce the custodian person to such be- fore Congressional tion 6004 indicative intent before a member Commission____ permit delegation at the discretion General, Attorney pursuant U.S.C.A. The argues that 28 U.S.C.A. § Attorney As General had exer Attorney confers on the General by enacting power delegate broad authority authority, cised this his C.F.R. that absent clear statutory language 0.178, the applied 0.175 and court these history demonstrating super- an intent (to uphold delegation orders an As section, authority cede that such to del- Attorney sistant General of the Antitrust egate respected. should be Division) in that case. The court also held law, again, The case supports once regulations that where a violation of such position. pre- Commission’s Section 510 alleged, the claimant must demonstrate delegation sumed to control by the Attor- prejudice in order to invalidate action taken General, ney provision statutory unless the pursuant F.Supp. to them. 356 at 25. See question it, supercedes see explicitly Horn, also In Re (3rd 458 F.2d 468 Cir. Cuomo, United States 525 F.2d 1285 1972) (applying analysis to similar lan (5th Cir.1976); Giordano, United States v. 2514); guage in Section December 1968 416 U.S. 94 S.Ct. 40 L.Ed.2d 341 States, Jury Grand F.2d language provision in no denied, (7th Cir.), cert. 397 U.S. way suggests super- that it was intended (1970) 25 L.Ed.2d 531 (apply cede power or narrow the conferred Sec- ing 6004). analysis similar to Section Thus compare with United States v. tion it delegation seems clear that in the Giordano, supra (language of Section 2516 regula instant case was consistent with explicitly Attorney pow- narrows General’s tory scheme of which is a delegation), pertinent er of legisla- and the part. Moreover, if departure even from history tive reflects attitude of defer- applicable regulations the terms of the regula- ence toward Section 510. Under shown, could be Scaduto has demonstrated promulgated pursuant tions to 28 U.S.C.A. Foucha, prejudice arising it, see § 510, Attorney delegate may 25; supra Molasses F.Supp. Pacific his Deputy Assistant and Assist- Commission, Co. v. Federal Trade General, Attorneys ant may who then del- (5th Cir.1966). F.2d 386 The district court egate Attorneys, it to United States who finding grant did not err in of immunity may delegate in turn it to Assistant United 0.57; Attorneys, valid. see 28 C.F.R. Cuomo, by or 542; past mine whether not actions v. U.S.C.A. Smyth, v. 104 Commission void. There is no clear supra; United States Moreover, (D.C.Cal.1952). Sca authority controlling question. this F.Supp. 283 It prejudice arising appropriate analogy duto demonstrates seems to me that an alleged to the failure conform approach regard from the would taken in Foucha, v. regulatory scheme. F.T.C. See statutes under review. Courts should re- F.T.C., Co. su supra; Molasses v. invalidating frain from more of a statute Pacific in did not err fail pra. The district court Time, necessary. Inc., Regan than is — corpus ing of habeas ad quash writ -, 104 S.Ct. improper del grounds testificandum If the unconstitutional L.Ed.2d egation. severed, portion of a statute can be remaining portion upheld. should Contempt Stat- Applicability E. of Civil ute operates Commission attorneys assistance of a Its staff. have finally the civil argues Scaduto § 1826, appeared in very Hearings this matter. statute, is contempt 28 U.S.C.A. throughout case. He have been conducted the coun applicable not to the instant terms, that, ap try. by testimony its Section It is assumed that much claims subpoenas who with plies only to witnesses has been obtained. Numerous “refuse[ ] testify proceeding be out cause to probably have been issued. The Commis ancillary a federal court or fore or to” comprised of members. sion is nineteen grand proceeding instant be jury, Judge as Although Kaufman serves or ancil “before fore the Commission chairman, nothing in the record indicates grand This claim lary jury. court or to” a personally single-handedly or that he is without merit. Because the concerning the issuance of makes decisions obliged to secure Scaduto’s subpoenas other writs of assist witness or by corpus, by enforce writ of habeas nothing presence ance. There is about the order, and because immunity ment of an Kauf of either Justice Stewart legal protect himself took action Scaduto compromise man would infect subpoena, pro from the Commission’s of the Commission. any way the work became ceedings the Commission before disqualification have judges may These proceedings before a court. “ancillary” to issues are problems in the future but such moreover, is, specifical relationship Such a undoubtedly be han us and can before 98-368(b)(l), which contemplated by P.L. ly dled with ease. an when a court issues order provides that Alternatively, to me the it seems requiring testify before individual Supreme by proach taken pun Commission, may be testify “failure to Valeo, Buckley contempt thereof.” ished the court appro- would also be 46 L.Ed.2d interpretation conflicts Finally, Scaduto’s in that matter priate. of the issues One Congress to intent of with the documented process for mem- appointing dealt with range applicable make Section Federal Election Commission. bers of the deposi including proceedings, court-related concluded: The Court Cong. & Ad. 1970 U.S.Code tions. See that the Commis- is also our view It The district court did 4022. News inability exercise certain sion’s contempt holding Scaduto civil not err mem- its of the method which because under not affect been selected should bers have FAY, writing separately: Judge, Circuit adminis- validity of Commission’s Severability III. to this determinations actions and trative date, administration including its Having that the mem concluded upheld today, authoriz- provisions, those III bership of the Article elec- financing of federal ing public must deter- improper, we past The of the powers principle tions. acts Commission of does not inhibit Article validity, accorded de judges are therefore III undertaking nonjudicial from facto recognized just governmental functions, as we have should be the though even respect legislative per- activity might case to acts disqualify with them well from by legislators held to have been performing judicial formed certain duties. in with an elected accordance unconstitu- beginning Republic Since the of the to plan. apportionment tional times, judges modern Article III of stature Id. at 693. country have sometimes served the in exec- positions. utive John Jay served holding simulta- opinion, regarding

In our my neously as Chief Justice and as Ambassa- powers separation of doctrine does not re- England. dor Oliver similarly Ellsworth quire voiding of action. Commission served as Chief Justice and Minister to subpoena appellant to the The issued is period France. For a contempt brief in order John valid and the due Marshall served Chief Justice and Secre- affirmed.

tary of State. Justice Roberts chaired the RONEY, Judge, special Circuit concur- investigating the Pearl Harbor rence: disaster. Justice Jackson Chief was Coun- sel the United Nuremberg Judge Fay’s I with concur decision prosecution of Nazi war criminals. Chief affirm the district court’s enforcement of Justice Warren headed the Commission Although subpoena question. here in I pointed by investigate the President agree if on that even the Commission Or- Kennedy’s President assassination. Slo- ganized unconstitutionally Crime is consti- nim, Extrajudicial Activities and the tuted, given its actions can de facto Principle Separation Powers, enforced, validity subpoena I dis- Conn.B.J. 391 Since none of these agree Judges Fay decision assignments challenged were court on my on the constitutional In Johnson issue. grounds, constitutional controlling judgment, the President’s precedent from flows them. Organized unconstitutionally Crime is not facts, legal proceedings The constituted. specific A proposal prevent judges presented and issues to this care- Court are performing extrajudicial from activities fully out in opinion Judges Fay set considered, however, rejected was Johnson, repeated and need not be the Constitutional Convention. Charles agree here. Because I with their decision Pinckney, delegate Carolina, from South arguments by appellant the other made specific proposal barring introduced a subpoena, defeat enforcement of this “Judge[s] Supreme Court” only I constitutionality need discuss of holding proposal outside offices. His was the separation Commission under referred to the Commission of Detail and powers concept. nothing Slonim, more heard of it. Conn.BJ. at 401. doctrine, separation The im- plicit Government, tripartite form of our Indeed, passed by several statutes Con- explicitly articulated in the Constitu- gress provide that the Chief Justice oth- any judicial tion. Nor are there decisions judges governmental er Article III serve comprehensively which have dealt with the nonjudicial See, in a capacity. e.g., entities presented. doctrine the context here § (Chief 20 U.S.C.A. 42 Justice member of principles Thus there are no well-defined Regents Board of of Smithsonian Institu- guide separation powers challenge. this § tion); (Chief U.S.C.A. Justice a Art); Gallery

The Trustee the National authority most can be cited for § (Chief involved, 76cc(b) principles is the discussion U.S.C.A. Justice a Trustee only Joseph some which Hirshhorn Museum opinions. H. discussion, Garden); great Sculpture The majority of that how- U.S.C.A. ever, (Chief clearly would appoints judiciary indicate the Justice member greed on whether the could have Publications Commis- to National Historical Act indi- sion). performed the Pension duties as vidual Commissioners. members consider the only In the modern case to could, thought York district New judges performing non- of federal problem thought from North Carolina while those tasks the court said: 2 they not. at 411-12. could U.S. principle that There is no constitutional Taney point alluded to Chief Justice this engage officially judges may not federal v. United States deciding in the of course There is the consti- nonjudicial in duties. Ferreira. Ferreira dealt with a statute III that Article courts principle tutional directing judge the district Northern may engage adjudicatory in deci- the District of Florida to examine claims of except in those “cases” sional functions arising of Spanish citizens out the 1819 referred to Article and “controversies” peace treaty between the United States and the The Justice of III. first Chief Spain, by Secretary the subject to review the distinction. He led illustrated Treasury. The held it did not the declining give advisory the Court jurisdiction as appeal have over the case an Washington; but a opinions to President district court because deci- from the “[t]he when still Chief Justice years few later judgment the of a sion is not court objection to be- he saw no constitutional of a justice. It is the commission- award coming negotiator American the at 47. The action of the er.” 54 U.S. important Jay treaty England of the as a was not judge district Commissioner was his name. This which bears expressly did ad- nor the Court invalidated good part controversy, without albeit Hayburn’s Referring dress that issue. Jay experi- The politically motivated. Case, Taney said: simply as an outstand- ence is mentioned ing difference between question upon illustration which there only may required of functions which not be pears to have been difference judges or their might Article III courts it not be opinion, whether nonjudicial of a character power functions conferring the on the as construed by the Constitution. are not barred which personally commissioners. judges construction, that And if it would bear Hansen, v. Hobson F.Supp. doubt, been no to have there seems (three court). (D.D.C.1967) judge time, they might but constitu- that that it, Secretary and the tionally exercise The two most often cases in any cited constitutionally their decisions. revise separation powers discussion of are Case, (2 Dall.) 408, Hayburn’s U.S. 1 Ferreira, (13 How.) 54 U.S. at 49. United States Fer L.Ed. following A the decision indicates Ta- note reira, (13 How.) 39, L.Ed. ney’s unreported Supreme approval Haybum’s Case involved the 1792 Court decision decided 1794 entitled gave ap Pensions which the courts of Act Todd, v. Yale United States which indi- peals authority pension on the rule action valid. cates such would be veterans, subject claims disabled but argument The in the case at issue central by Secretary of War. review question of is framed as a whether prior judgment, Act amended the render judicial activity mem- moot, Supreme ing it so the Court never ability perform with their bers interferes constitutionality. ruled on Act’s But in the constitutionally-required their duties reporter included case foot suggestion is no judicial There branch. opinions note the three circuit court judges that involved would be com- the Act unconstitutional. found duties, judicial pletely from their disabled only disqualified would be holdings opinions The in those were that but involving handling scope separation powers principle was vio- from cases activity. We by Congress’ assigning need not de- lated They precisely disqualification, any, what if nonjudicial disa- cide “Court” functions. appropriate power judicial would in fact be to discern the exercise of encroached argument control decision. this cannot separate power on the of the executive. judges frequently fact that The well-known judicial power exercised, no Since is here disqualified handling certain except the court that enforces this sub- cases and that branch suffers the Nixon cases are poena, inapposite. simply sup- therefrom dimunition decision here does not detract from ports disqualifying a decision ac- Valeo, in Buckley the dictum judge tion of an in an executive individual 612, 684, (1975) 46 L.Ed.2d 659 position create does not that: powers question problem. The is whether The Court has held that executive or executive, legislative, nonjudicial administrative duties of a na of Government are in branch may imposed ture not be hold any way composition compromised ing office under Art. Ill of the Constitu and activities this No of Commission. ar- Ferreira, tion. States gument they has been made that are dimin- 13 way. (1852); Hayburn’s ished in The 40 structure the How. L.Ed. [14 42] Case, judicial particularly, easy branch its (1792). Dall. 409 L.Ed. [1 436] judges cross-assignability equal pow- The is issue not the whether President or undergirds er the notion loss that the of Congress require judicial could the and con- judges particular one or two cases does gressional officers here to serve on the infringe constitutionally-required not the nothing Commission. There is in this §§ 291, duty judiciary. the U.S.C.A. suggest record that the members did not 292, 294. voluntarily accept appointment. There Appellant argues that this is Commission nothing in suggest is this decision that improper merging an of the branches of they appointment, could not have declined prin- Government. That assertion is made had chosen to do so. cipally ground on the that members Although no the Buckley assertion three branches are on the Commission. tested, has principle judicially been Presi- argument The short to this is answer years dents in recent frequently ap- have congressional members of the Commis- pointed both judi- members of the Federal powers sion Congress, exercise no and Congress ciary members of and to commis- powers judi- members no impor- sions established to them on advise ciary, in on the service Commission. Sim- See, e.g., public policy. tant issues Exec. ply put: do not wear their robes 11412, (1966-1970 Order 3 C.F.R. 726 point the Commission room. This is (Presidential Comp.) appointment crisply provision made to en- Higginbotham, A. Philip Leon Senators A. subpoenas, go force Commission must Hruska, Representa- Hart and Roman and to court. President’s Commission on Or- Boggs tives Hale and M. William McCul- ganized Crime; Subpoena Power, P.L. 98- loch members of as National Commission 2(b)(1), (1984). 98 Stat. 490 It is Violence); and Causes Prevention provision judges’ reinforced that the (1964-1965 Order Exec. 3 C.F.R. 329 expenses paid not are (Presidential Comp.) establishment of Pres- budget. 3(b), Order Exec. ident’s Commission on Law Enforcement Fed.Reg. 34, Justice, and Administration of which in- analysis This reveals inappropriate- Judges cluded James Parsons B. and Lu- attempting adapt ness of the functional Youngdahl members); ther W. Exec. standard of Nixon v. Administrator (1959-1963 Order 3 C.F.R. 795 Services, Comp.). (1977) L.Ed.2d to this case. Nixon, general argument See United The thrust of 418 U.S. 683 as to unconstitutionality The is this L.Ed.2d 1039. Nixon cases agency engaged involved issue of whether is a enforcement law judges simply or federal officer to utilize tools activities available to point To out the It not be involved. the Executive combat crime. is not should regard, the perception in this appellant’s function advise quoted: of his brief is following portion Attorney General or the President crime pre- how utilize detection and study a mere Yet, vention methods. the Commission reading group, even intellectual compels studying its members to do all precise It is this think tank. more. purpose problem solely of advis- ing powerful It investi- public. Contrary argument, to this the Commis- impact greatly gative body whose actions simply sion is to advise and recommend. It Its

upon the three branches. is to: the force of law. substantial have Attorney advise the President and the core, goal At its the Commission’s stated respect findings General with to its fight is to crime. To succeed and role can be actions which undertaken to im- purpose, its are classified as its members prove law enforcement efforts directed “investigative or enforcement offi- law crime, against organized rec- make 6(a)(1)) (P.L. pur- cers” 98-368 concerning appropriate ommendations poses to records and informa- of access legislative improve- administrative apparent has au- tion. The Commission improvements ments and in the adminis- thority compel testimony re- and even tration of justice. (P.L. production of quire the witnesses 12435, 2(a), 48 Exec. Order Section Fed. § 2). functions, 98-368, In its the all 34, (1983). It Reg. has no autonomous to the Presi- answerable authority impose implement to sanctions dent, (E.O. through Attorney the General Although binding final action. it the has § 12435, 4), and needed obtains resources investigate upon to facts which to (E.O. 12435, Attorney from the recommendations, no its it has extra- base § 3(c)). goes accomplishing As it about ordinary powers usually given to com- goals, findings its the Commissionmakes appointed authority missions under the of crime, organized evaluates federal about Advisory Act, Federal the crime, organized to pertaining laws U.S.C.A.App. 2. concerning even makes recommendations Although analysis the here makes it un administrative, legislative judicial im- necessary propriety to the of federal decide (E.O. 12435, 2(a)). provement Commission, serving judges on this it By purpose and role of the reason it is be noted that not uncommon for should Commission, statutory of interaction judges advise federal to the executive ordinarily separate branches of legislative of Government with branches together government are forced to work particular to which fall respect matters jeopardizes in a the Con- manner expertise their as a result of their within independence stitutionally mandated experience. In addition to the exec placed in a judge A each. cannot previously not advisory utive commissions being position a law enforcement offi- ed, frequently testify before judges Con to Attorney cer General. answerable only proposed as to rules in mat gress upon A be called to investi- judge cannot administration, but other ters of give advisory activity gate criminal See, e.g., matters well. opinions regarding the effectiveness Reform of Hearings Federal Criminal Laws: against effort or- the law enforcement Before Judiciary, Senate Committee on ganized judge placed A cannot be crime. XVI, Cong., pt. Sess. at 11915-31 recommending 97th 1st legislative position in a Tjoflat, (testimony Judge B. Unit Gerald problems. responses emerging to Sim- Judge, Appeals ed ilarly, congressional representative is States Circuit Circuit); sense, Legislation for the Eleventh in a ill-equipped, constitutional Recodify Federal role law Revise and Crimi- take of a enforcement contrast, Hearings majority explains, nal Laws: the Subcom- as the the Com- Befare body. mission acts impossible mittee on Justice as a It is Criminal the House in, identify importantly, more Judiciary, Cong. Committee on the 95th exclude prior Sess., body actions 3, (1978) the influ- pt. (testimony 2d at 2473-84 ence of the Article III judges two Lasker, who are Morris United States Dis- members of the Commission. Judge, trict District Southern of New York). I reject must the majority’s attempt also legitimacy accord de to the Com- Even if the Commission is determined facto approach mission’s actions under the pre- constituted, unconstitutionally agree I Valeo, 1, scribed in Buckley v. 424 U.S. past Judge Fay its action in the 612, 693, 46 L.Ed.2d 659 subpoena given issuance of this should be (1976). Buckley approach, which was subpoena validity, de can be facto response formulated in to a violation enforced, properly the authority under Power, Appointments II, Article Section Valeo, Buckley 424 U.S. S.Ct. inapplicable cl. here. In Buckley, (1976) and Pipe 46 L.Ed.2d 659 Northern problem was not that member of the Pipe Co., line Line Co. Marathon unfit, Federal Election Commission was L.Ed.2d 598 reason of governmental duties, other powers; exercise problem his there was Thus, judgment I would affirm simply that the members of the Commis- district court. sion had appointed been rather than the President. Because the JOHNSON, Judge, dissenting Circuit in reconstitution of the Federal Election Com- part: require mission did not an alteration in its Although I concur in Sections I and II of membership, and cast doubt on the con- I majority’s opinion, must dissent from tinuing viability taken, actions it had III, which holds the federal validity conferral of de awas facto severable from the remainder of the Com- plausible Here, solution.1 where re- judgment mission and affirms of the constitution of the President’s Commission approach district court. this may Separation While accordance with of Powers appropriate reviewing specific principles when legis- requires an alteration in its mem- lation, bership, reviewing improper it is ill-suited it would the com- for this Court guess second position advisory of an executive the influence of the commit- dis- qualified Commission, by of the members tee. The pro- doctrine “severance” — according validity prior de to its ac- Time, pounded Regan U.S.-, facto tions in with connection Scaduto. 82 L.Ed.2d 487 re- flects deference the enactments Thus, I believe we have no choice but to legislative and to the history prior hold all actions statute, particular of a neither of which is attempt its to secure Scaduto’s applicable Moreover, here. at 3269-70. Id. judgment invalid and to reverse the inappropriate severance is rendered in this district court. legal

case the fact that action is often single pursuant provision

taken to a of a

statute, provision finding one of a stat- not, therefore,

ute unconstitutional does in- under By

validate actions taken another. mistaken, may Buckley Ryan (10th Tinsley, have been F.2d Cir. however, 1963). taking bearings its remedial It is unclear that chaos would have reapportionment prior See id. cases. resulted from the invalidation of the acts Commission, imposed S.Ct. at 693. These cases lidity de va- Federal Election and it sure facto legislation by legislatures ly on the enacted will not result from invalidation districts, malapportioned Organ elected from acts of the because President’s Commission on ”produce[d] to do otherwise ized would have chaos." Crime in connection Scaduto. notes an extradition that finding court err in that did not there was Depart- by already denied the State been danger foreign prosecution insufficient a The also claims that ment. Commission justify the privilege. to the assertion of that Scadu- virtually is no likelihood there testimony become available to to’s would Attorney Ap- C. Failure of General to authorities, foreign the court’s or- because prove Application Immunity required giv- to be der Scaduto’s deposition by in the form of a taken a en immunity presented by The order imposed attorney, and single Commission prior taking to the of Sca any form of disclosure. an absolute bar deposition approved by duto’s not first was argues if his were that conviction Seaduto by Acting Attorney General but an currently pending appeal reversed Attorney Assistant General Criminal Circuit, retrial the Second was before argues delega that Division. Seaduto this again subject sought, could he improper tion was because U.S.C.A. possi- argues it is also He that extradition. § 6004(a) (proceedings before administra try authorities could that the Italian ble bodies), provides only approval tive for the further claims him Seaduto in absentia. applications immunity by the Attor secrecy have found orders that some courts ney General. He claims that because the testimony will insufficient to assure that invalid, immunity granted was therefore he foreign to a sover- not become available justified invoking the Fifth Amend Flanagan, supra, 691 eign. In re See privilege. ment 6(e) (Rule of F.R.Crim.P. not F.2d at argues that fact adequate to nondisclosure testi- assure per- no explicit language has Section 6004 mony). (while mitting delegation (pro- Section 6003 argument has The Commission’s ceedings grand jury) ex- before court or points. is greater support on all While it Deputy plicitly permits delegation to the will be possible that Scaduto’s conviction designated any Assist- Attorney General reversed, sought, retrial will not be General) Attorney does not demon- ant seek extra the Italian authorities will prohibited. is delegation strate such that dition, comply, authorities will language per- argues general this It that danger precisely appears such Attorney General to make whatev- mits the speculative variety the Court appropriate, he under delegation er deems support insufficient to the assertion found on him the broad conferred privilege in And Seaduto of a Zicarelli. authority). (delegation of U.S.C.A. suggest that he presents evidence argues further that two The Commission fact, absentia, will, in or that be tried delegation promulgated this orders under consequences such a trial will have authority delegation in render the statutory subject if he for him whatsoever 0.175(c), case valid: C.F.R. instant sufficiency As to extradition. Attorneys provides that Assistant order, Fifth the former Cir secrecy court’s General are 6(e) adequate fully cuit has found Rule authority vest- authorized exercise to a prevent the likelihood disclosure Attorney by Section ed in the foreign sovereign. See by an approve issuance ... 526; Brummitt, In Re supra, 665 F.2d at order the United States agency of By analogy, at 811-12. Tierney, F.2d in a compelling testimony by a witness appear given order it would agency when proceeding before the danger to eliminate the court sufficient is with- subject proceeding disclosure, matter as the particularly offi of such

Case Details

Case Name: In Re Application of the President's Commission on Organized Crime. Subpoena of Lorenzo Scaduto

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 29, 1985

Citation: 763 F.2d 1191

Docket Number: 85-5232

Court Abbreviation: 11th Cir.