United States v. Cox

three witnesses first identified picture cir- from a months some thirteen them culated Ap- question. the transactions after

pellant’s supported the testi- alibi was

mony con- the Oklahoma of his wife and vital evidence

tractor. The excluded might tipped defense, have well

the balance. for further remanded

Reversed and

proceedings herewith. not inconsistent

Rives, Bell, Gewin and Griffin B. Judges, part. Circuit dissented in America, The UNITED STATES Katzenbach, deB. Honorable Nicholas the United Acting Attorney General States, Robert E. Honorable Hauberg, for the United States Mississippi, Peti District of Southern tioners,

v. COX, United States Harold

Honorable W. Judge States Dis District District of Court Southern trict Mississippi, Respondent. HAUBERG, E. Robert

The Honorable Attorney for the Southern United States Mississippi, the Honor District of Katzenbach, Acting able Nicholas deB. of the United Appellants, COX, United States W. Harold

Honorable Dis the United States District of Court for the Southern trict Mississippi, Appellee.

Nos. Appeals Court of

Fifth Circuit.

Jan. 1, 1965. Denied June

Certiorari

See S.Ct. 1767. Jackson, 2 in Number Room

Court general dispatch Mississippi, for the grand jury was of its business. duties, fully their as to instructed responsibilities and re- number room tired Building at Jack- in the Federal The United its work. son to do Attorney (and of his as- one States grand jury sistants) with the sat day throughout on October explained to the detail perjury Court’s laws and the laws for their of such construction grand jury heard information. day throughout on Oc- witnesses morning 1964. On tober jury, 22, 1964, the October through foreman, known to made its open they had the Court in court Hauberg, requested Unit- E. Robert Attorney, prepare cer- ed States they desired indictments which tain persons bring against some of and about consideration under they testimony, heard had Attorney refused to United States sign any indictments such draft Acting Attor- on instructions States; ney of the United General Douglas, John Atty. Gen., W. Asst. whereupon Court ordered Rose, David Hollander, Dept, L. Morton States directed said United Justice, Washington, C., appel- D. no bills draft such bills true lants. duly have as the report Thomas, Earl T. Pyle, and to L. Arnold Joe voted and desired Patterson, Atty. required T. Gen., Jackson, Miss., as such instruments appellee. contempt. penalty of law under Attorney was United States TUTTLE, Judge, and Before Chief which to afforded one hour within RIVES, JONES, BROWN, WISDOM, he would or not as to whether decide Judges. BELL, GEWIN and Circuit order the instructions abide respect. theAt Court in such Judge: JONES, Circuit time, Court re-con- end an order of the October On Attor- United States and the vened District Court United States specifically ney asked signed Mississippi, Southern District he in- or not as to whether Court, Cox, judge of that Harold order and to conform with tended caption order, was entered. The in said re- of the Court direction closing omitted, follows: and formal whereupon spects States the United JURY, duly “THE elect- GRAND respect- answered ed, impaneled organized, for fully instructions do so on declined to Mississippi, the Southern District Katzenbaeh, Act- Nicholas deB. from reconvened order the Court ing Attorney A.M., was there- General. He 9:00 October adjudged by proceedings duly enforcement upon the Court these entirety contempt Court and order its in civil subject stayed days, opportunity to make for five was afforded which he further statement desired orders United sentence; Appeals application; make to Court Court of on said before whereupon Attor- and for the enforcement all ney inability which, proper process com- reiterated his let issue.” ply with order of Court Attorney, Robert express from and direct instructions Acting Hauberg, E. Acting Katzenbach, Nicholas deB. General, Katzenbach, Nicholas deB. have appealed they, joined from order and States. pro- a writ of seek “WHEREFORE, IT IS ORDER- hibition enforcing order, AND Court ED ADJUDGED Court’s and from asserting jurisdiction Hauberg, require United that Robert E. At- the torney Attorney, guilty States of civil General or the At- United States contempt torney prosecutions of this and in “to Court the institute criminal regard presence any steps or to Court for said take thereto.” obey The refusal its said order and facts recited in the order are un- custody he is ordered into controverted. No further facts are es- United con- sential to a States Marshal to be decision of the issues before by Although County, fined him this in the Hinds Court. here issues presented Mississippi, jail, arose, part least, there to remain un- at as an purges rights matter, he of til himself con- incident a civil of this no civil tempt by rights agreeing questions to conform to are involved in the rath- inquiry performing er said order broad his official which we are called duty request- as to make. (about pend- five) ed in the several require The constitutional ing cases before them October presentment2 an ment of 22,1964. and October capital prosecution predicate for as a to a “IT IS FURTHER ORDERED primary for its or infamous crimes has the Court that a citation issue to purpose protection of the individual Acting Katzenbach, Nicholas deB. finding except jeopardy of on a Attorney of General the United probable group of his fellow cause a States, directing appear him to be- designed citizens, afford safe and is why fore this Court and show cause guard against oppressive actions of the adjudged guilty he should not be of prosecutor or a court. The constitutional contempt of this Court for his in- conferring provision is be read as not to structions and directions to the grand jury, preserving as on or disregard Attorney any such, rights prerogatives. The disobey the orders of Court this is, provision as been constitutional has respects stated. said, The for benefit accused. provision is not to read constitutional be “The United States re- validity precluding, as essential to the as quested stay of enforcement requi indictment, of an the inclusion of proceedings order and further herein sites not exist common law. days which did at for five after this date to en- apply Traditionally, able him to to for Appeals States Court of Fifth to enter a United States had the prohibition charge Circuit for a prosequi writ nolle of a criminal granted; request any after indictment and before time Nothing 1. U.S.Donst.Amend. V. re- this case involves or quires presentment. a discussion of a States,4 required to take care who trial, done without he could have and this faithfully executed.5 be laws approval court or the consent the hand of General doubted wheth- It be accused. taking the laws care that adoption President er, the Federal before the legal proceedings Procedure, of the United States had he Rules of Criminal authority offenses, be and in prevent return an faithfully role executed.6 There would dictment finding to a as require- is restricted to a barrier no constitutional probable cause signature whether or aof United ment an been com- offense Attorney upon believe that indictment is an discretionary power of the validity. mitted. The to its essential attorney in deter- provided It the Feder is now mining prosecution shall whether a Rules of Procedure that al Criminal may well de- or maintained commenced or the United States wholly apart policy pend upon matters of Attorney may by of court file a leave probable any question of cause.7 from Although 48(a) Rule dismissal of an indictment. bar, as a member 18 U.S.C.A. Fed.Rules Crim.Proc. an States is Rule, leave absence court, is nevertheless officer of the he required. pur not have would been Government, and executive officialof the prevent pose of the is to harassment Rule depart- it is an officer as executive dismissing by charging, of a defendant ment a discretion exercises re-charging placing de without prose- to whether or there shall be Woodring jeopardy. fendant States, v. United follows, particular cution in a case. It 1963, 8th 311 F.2d 417. Cir. sepa- of as an incident the constitutional necessity for Rule 7 the the eliminates powers, are not ration of that the courts many inclusion in an of of indictment of with the free exercise interfere prolix the technical and averments discretionary powers of the the attor- required law, by pro were viding at common neys con- of the their United States the shall be a that prosecutions.8 trol provision The over criminal plain, written concise definite state sign- requiring 7, Rule the of constituting ment facts the essential attorney by the of the indictment charged. pro offense Rule also the The recognition Government, for is a the signed by that vides torney “It shall be the at per- of Government counsel the government.” 7(c) for Rule the bringing permit of an mit the or not Fed.Rules Crim.Proc. 18 U.S.C.A. attorney If refuses indictment. sign, discretionary power he has the judicial power of The doing, no that is we conclude there United States is vested in the federal sup- valid It is not to be indictment. courts,3 prosecutions and extends to signature posed is of counsel that violations the criminal laws of the merely of the of the act an attestation United States. executive is signature fore- vested the President of the United Wing Jung 3. Art. be in Dear United U.S.Const. III. found v. 73; 1963, States, 9th Cir. 312 F.2d II, 4. U.S.Const. Art. Sec. 1. 1961, States, Swepston 8th v. United Cir. II, 166, 812, 5. U.S.Const. Art. Sec. 3. cert. den. 369 U.S. 82 289 F.2d 612; People 689, v. 7 L.Ed.2d S.Ct. Fessenden, 254, 262, 6. Ponzi v. Florio, N.Y. 92 N.E.2d 301 66 L.Ed. 607. 993; Magistrates v. 17 A.L.R.2d Hassan Jurisdiction, Schwartz, 7. Federal Criminal 238; Court, Misc.2d 191 N.Y.S.2d Contemp.Prob. 64; Ops. 13 Law & Sumners, Murphy Tex.Cr.R. Att’y Ops.Att’y Gen. 98. Gen. S.W. controlling principles 8. Statements of the precedents to other references performs opinion, man that function. It is not is the view that the United signature supposed required, upon to be States the re- quest jury, counsel is indict- certificate to draft forms proper charge ment is in form an of- of indictments in accordance with its de- sufficiency fense. the indictment sires. The order us for review before Rather, conjunctive; requires be before the court. tested signa- think, requirement sign. we prepare of the A evidencing purpose majority court, having ture is of the decided joinder of the erroneous, for the United direction instituting appeal order on will be reversed. proceeding a criminal in the Court. So much the order of dis signature Without there can be adjudges court as trict brought proceeding criminal an in- Attorney for the Southern District of compliance dictment. Substantial rather Mississippi contempt to be in is a final than technical exactness re- meets the order, such, appealable as and for the quirement of the There rule. seems to assigned, reasons That here reversed. be no for the statement part of the of the order district court ás signature absence is not fatal. Acting Attorney require would Gen 4 Barron & Holtzoff Federal Practice & why eral show cause he should not be Procedure § interlocutory contempt held If discretionary it were not for the appeal appealable, and the power given to the United States Attor- Acting Attorney General will dis ney prevent an indictment with- missed. holding signature, might remains for consider There our constitutionality doubt as to the disposition petition ation and requirement of Rule 48 for of court leave States, Acting Attorney Gen pending prosecu- dismissal of a for a Writ eral tion.9 prohibit Respond of Prohibition to Because, conclude, as we enforcing ent District signature of the Government order. The reversal of the order as to necessary validity is to the of the indict Attorney makes un States affixing withholding ment and the or concerned, any necessary, so as he is far signature the is a matter of executive application the consideration of discretion which cannot be coerced or has Writ Prohibition. been no There courts, contempt reviewed the the the citation issued for service on Attor that, order be must It reversed. seems ney requiring him General to show cause. Attorney since the United States cannot put jeopardy. yet in Our He not been required give validity to to an indict disposition appeal makes it of the im by affixing signature, ment his he should probable will be is that citation such indulge required not be to in an exer appear and sued served. It does not that futility by cise of preparation the any necessity is time for the at this form of an indictment he which is unwill discretionary Writ of issuance signature. to vitalize with his There petition will de Prohibition. The required prepare fore he should not be nied. unwilling indictments which he is and sign. duty opinion under no that when We are of the Judges Tuttle, Attorney Jones, Brown Wis- under ever United States join sig- legal duty dom in conclusion that which has been directed Attorney court, perform nature of the United valid States order his validity duty perform essential to of an indictment. com refusal Judge Brown, appears justified separate ply as in his such order will not be v/ith constitutionality necessary disposition 9. Consideration of of the rule not matters before us. Attorney, District United States Attor- instructions from the excused preparing true bills disregard us in ney duty assist to- General been have we way open manner that disobey in the order. Thus handing us these before here served further order is entered if a relief Hauberg he could rendering said Mr. assist- bills. respect to the being permission grand do so without ance given Department in Wash- Attorney preparation of yesterday ington. We concluded dictments. by asking him to secure afternoon challenged respondent-appellee has The those permission to have join right morning. ready us bills true petition for a of Prohibition. Writ Hauberg that he us now tells Mr. unnecessary pass on this We find it three mat- on all has been instructed question. words In other not so to do. ters forth- issue mandate will The Court’s position now in the at the we are Appeal to Katzen- as with. dismissed that we should vote event Attorney Acting baeh, Order General. why to do with don’t know what we Haub.erg, appeal reversed as to be ac- it after that Attorney. writ of Petition for added.) complished.” (Emphasis prohibition denied. then asked the District At- The court respond. torney The he wished if RIVES, B. GRIFFIN GEWIN and Attorney he had been District stated that Judges (concurring BELL, Circuit Acting Attorney by the Gen- instructed dissenting part) part : prepare indictments. The eral not to presented pointedly question arose discloses had record grand jury, in the foreman when certain matters heard evidence about presence jurors in office had General’s court, help requested from the court investigated already and determined did follows: prosecution. not warrant “BY FOREMAN COWAN: heard had also evidence about matters of Cox, “Judge we con- have under had which the knowledge matters, sideration three different investiga- made no had concluded, two we have the third tion.1 disclosed being process Acting concluded. yesterday Hauberg, On we Mr. request asked General had him to directed 1. “BY MB. HAUBERG: “BY THE COURT: please, “If the Court after iu two wit- “That’s connection with the jury requested prepare proposed government me to nesses wasn’t it that yester- considering? in indictments several on matters are day I contacted Mr. Burke Marshall and “BY MR. HAUBERG: lengthy “Yes, Honor, had a him and conversation with Your as to the other and early Department was to receive further instructions two matters of Justice morning, night knowledge but last I in- was had no individuals in- prepare pro- Jury structed that not to until received or volved Grand posed morning taking starting testimony indictments. on the This started on its telephone Katzenbach, Boyce with Mr. Act- out with Mr. I-Iolleman back I Attorney September General of believe on the 30th Department and Mr. Burke Marshall both had or not conducted had telephone investigation any I was directed in the FBI conduct ei- Mr. Katzenbach that as to the one of the ther matter or the matter Department subsequently matters of Justice came to the attention of Jury the United States felt if law and as I the Grand this week. am au- Attorney the fact was not sufficient to constitute thorized to state Gen- perjury requested and that an indictment thereon eral has and directed me to me good. investigate would be no the FBI to those other ask investígate matters, FBI proceedings to pending but applica- ther that he had likewise been directed not respect tion and decision with to the assisting proceed grand jury. to prohibition.” v writ of colloquy In this the court stated to inquired The court further whether the Attorney District that the consid- court Attorney refusing obey to grand jury to ered the be within its prepare order court’s to true bills and province hearing the matters under sign requested by the same as passing upon consideration them jury presently pending “in these cases pursuant Accordingly, to their oath. being Jury.” considered the Grand Attorney court directed the District Attorney The District stated disregard his instructions the De- as follows: partment of and to serve the Justice please, “If the Court of in- because grand jury by preparing the true bills I structions I have received most requested. as had been The court then humbly respectfully have to re- requested recessed and the District At- comply.” fuse to torney to further with communicate Department of Justice and to advise that Thus the basic issue before this Court controlling Department whether the discretion of the instructions of the felony prosecu to the institution of a recess, court. After the District tion rests with the General2 reported the court that majority with the by telephone had conferred with the Act- opinion ignore inquisi would the broad ing Attorney General who instructed him grand jury, torial as follows: requirement limit the constitutional “I have been instructed Amendment V to ‘As United benefit acc you used.3 neither nor your are assistants authorized to agree We with Professor Orfield that: prepare indictments great “The serves two' being matters heard on October 21 bring functions."360 isOne to trial and 22 the Grand and I you your “360. direct Charge assistants Jury, re C.C. Cal.1872, pages 992, 993, 30 Fed.Cas. doing your refrain from so in offi- C. 18,255, dissenting opinion No. of Har capacity. cial If the Court should lan, J., People in Hurtado v. of State you disregard my direct instruc- California, 1884, 516, 538, 110 U.S. pain contempt you tions on should 555-556, Ill, 4 S.Ct. 28 L.Ed. parte Bain, 1887, 1, 11, Depart- Ex inform the Court that the 30 L.Ed. 849. immediately apply ment will to the Appeals pro- persons just Court of for a writ accused of crime hibiting grounds. protect such an order. You should The other is to request stay persons against for a of fur- Court unfounded or mali- matters, two but and dependent that as United States the record does disclose his proceed I would be unable views. matters, in either one of I have these so According majority, “The consti- Honor, morning, now as of this Tour provision tutional conferring is not to be read as been directed Mr. Katzenbach that as a United States preserving on or to the Attorney represent- jury, such, any rights prerogatives. as ing the I United States of America that provision is, The constitutional as has proceed any cannot one of these three said, been for the benefit of the accused. matters, Katzenbach, At- that Mr. provision The constitutional is not to be torney General, away my au- has taken precluding, read as as essential to the thority such.” validity of an indictment inclusion of requisites 2. The com- United States has acted at which did not exist at Attorney General, the direction mon of the law.”

175 587, insuring 586, Sullivan 39 L.Ed. 657.” prosecutions that S.Ct. cious 170, States, 1954, 173, U.S. proceeding under- v. United 348 will be no criminal 182, 184, 210. 75 99 deter- S.Ct. L.Ed. without a disinterested taken guilt. probable in- The mination of grand jury unques- A federal has the quisitorial called been function has right any inquire into matter tioned important.361 the more jurisdiction involving within the viola- Jury Proceedings, “361. D. in re Grand tions of law and return an indict- 283, C.E.D.Pa.1933, F.Supp. 284.” 4 probability ment if it finds reasonable Jury, Orfield, 22 The Federal Grand F. that a crime has committed. This been 343, R. D. 394. court, it do at the instance Attorney, the District Gen- In the case last cited Professor Or- initiative, eral or on its own from evi- field, Kilpatrick said: gather knowledge dence it or from inquisitorial power “The of the of its members.4 grand jury is most valuable func- majority provi- holds that: “The today and, possesses tion which it 7, signing requiring sion Rule any supposed protec- far more than for the the indictment gives accused, tion which it recognition Government, of the is a justifies its survival as an institu- permit or counsel to Government engine discovery tion. As an bringing permit of an indict- against organized far-reaching ment.” crime, counterpart. it has no Pol- icy emphatically forbids that call attention deference we With any should be curtailment of it ex- support is cited cept clearest cases.” ignores holding we submit history and of Jury Proceedings, In re Grand D.C.E.D. Pro- Procedure. Rules of Criminal Pa.1933, 283, F.Supp. 4 284. Orfield, a member fessor himself Advisory grand jury possesses plenary on Rules of Crim- Committee Procedure, preserved independent inquisitorial powers. for us the inal 6, captioned history Supreme “The Grand of Rule held Court has Execu- Jury.” There 22 F.R.D. 346-357. See tive Order and a Circular Letter of the history, nothing Department nor in the requiring approval in that Justice 7, succeeding would authorize Rule General before evi- radically re- presented counsel so dence could Government in certain cases To duce the “was not to curtail or limit intended points well-recognized contrary, Orfield out Professor rules, investigate any criminal the federal that before consider and al- leged jurisdiction. practice of United States crime “It was the within its See sign Thompson, 407, or his assistant United v. 251 U.S. 413-415, 289, 291-292, foreman to 40 S.Ct. 64 L.Ed. dictment and 333; States, 273, Bill’ ‘A True Blair 250 below the endorsement v. United U.S. 377, 282, 468, 471, 779; Rule 22 F.R.D. 39 63 L.Ed. the face of it.” S.Ct. already existing Henkel, 43, 61-66, simply Hale v. 26 continued the U.S. 652; 370, 373-376, practice. Orfield further S.Ct. Professor 50 L.Ed. Frisbie States, states, United v. 157 U.S. Ry. Co., Philadelphia Henkel, 1906, E.D. R. v. & Hale v. 201 U.S. States Pa.1915, 370; Thompson, 301; v. 225 F. S.Ct. 1920, United States v. 283; N.D.Cal.1952, F.Supp. 289; Smythe, Blair 40 S.Ct. U.S. 9552; (D.C.Pa.) States, 1919, No. F.Cas. 250 U.S. Re Miller Jury (C.C. Charge 468; Re to Grand Frisbie and see W.Va.) 39 S.Ct. v. United F.Cas. No. 18248.

176 attorney majority holds, United

“When the The “If the ‘merely sign, attorney does attests the is [that for the Govern- grand jury.’357 sign, action of the refuses to as he has the dis- ment] cretionary doing, conclude we States, “357. Crowley 1904, v. 194 United only is no valid indictment.” 461, 731, 737, 475, 48 U.S. 24 S.Ct. holding for is 4 Bar- cited that L.Ed. 1075.” by Holtzoff, 22 394. In the' case cited ron & & Pro- F.R.D. at Federal Practice which, Orfield, Crowley 61, turn, 1913, v. Professor United cedure cites § 1903, 475, 1946, States, 461, Wheatley States, 194 U.S. 24 S.Ct. 4 Cir. v. United 731, 737, Supreme 599, Court said: 159 F.2d where the rule well Judges Judge Soper, stated as follows charges indictment “The embodies concurring: Parker and Dobie grand jurors, signa- made signature ture the United States “It has been held that the merely prosecuting attorney part attests the action is no grand jury, necessary an whereas of only and is the indictment information responsibility authenticity upon rests evidence of the govern- attorney representing document; also and it has been investigation ment, imports signing improper an held an that ca- facts him his official is not such a defect as indictment added.) instrument; pacity.” (Emphasis would invalidate the Lane, re 135 10 S.Ct. U.S. finding indict- and return of the 219; 760, v. 34 L.Ed. Miller United are the acts ment Cir., 536, States, 529, 6 F. cer- 300 Attorney prepares a United When 624, denied, 45 tiorari 266 U.S. S.Ct. signs indictment, not an he does 474; 123, King v. L.Ed. United charge, adopt, approve, for or vouch 104; Cir., 103, States, 5 F. prosecu- nor a criminal does institute McAvoy, C.C.N.Y., v. UnitedStates tion.5 (No. 1044, 15,654) Fed.Cas. 1045.” rule is well set We submit that the Attorney cannot, The United States signature that the absence tled except advisory capacity, inquire in an Attorney from an in the United States into merits of whether indictments dictment does not invalidate a conviction particu- should be found and returned in based it.6 being grand lar cases considered jury. grand jurors Only 7(c), themselves F.R.Crim.P., provides Rule grossly power. have wrong signed by It would be indictment be “shall Moreover, usurped. government.” Rule 6 practically impossible, (c) requires because the foreman of person ju- [grand] “no other than also all “shall indict- present grand ju- rors ry while the An ments.” be found deliberating voting.” 6(d), Rule or more concurrence twelve responsibility F.R.Crim.P. ing jurors. of find- It must be returned returning judge indictment rests to a court. Such solely upon grand jurors. adequate return authentication. 600; That Wheatley States, is true also toas the foreman who 222 F.2d v. United duty “sign indictments,” 1946, 599; under King all 4 Cir. 159 F.2d including States, those for 1922, he does 5 Cir. 279 F. 103. 6(c). vote. (Emphasis See Rule add- “Attorney government” de- ed.) 54(c), fined Rule F.R.Crim.P. Lane, 1890, 6. In re provide 8. The forms to Rule 58 attached 760; States, Abramson v. United signatures of both the foreman 565, 567; Cir. 326 F.2d Attorney. and the United States Keig, States v. 7 Cir. 334 F.2d Wiltsey v. United 4 Cir. in court lie that, indictment would an 6(f). that such states Orfield Professor Rule of lim- ineffective. Statutes inactive and sometimes as “Indorsement desirable by return the not tolled itations would grand juries indictments return according to the Orfield, indictment of such an Fed- “The not found.” have only Attorney He asserts that General. Jury,” 22 F.R.D. eral Grand Attorney signature of the District signature the States Attor- United the assistants) gives (or the his authorized ney that the is a mere authentication argument used grand life. Such jury. indictment the is the act of indictment position support action of the to the that pass us the wisdom not for to It is Department or the Dis- of Justice the requiring such authentication. It is refusing prepare Attorney or in to trict enough provides for the law the that sign way impairs, in no indictment the by to authenticated the indictment impedes the influences the action of or signature attorney gov- of the the sug- Attorney grand jury. The General Attorney The United States ernment. gests as- can obtain that the may court, and an officer the be re- degree judge, and to a sistance the quired perform purely ministerial person” assist that some “outside legal act. There are few documents which grand preparing jury in the indict- the import potential bear more awful ment, person” has “outside but that such upon liberty effect and life than an does authority no indictment the importance indictment. The of an in- grand jury enter no the triple dictment makes the rational au- view, position the room. In our thentication which the rules have seen fit Attorney sub- is untenable. We General require; viz., signed it be both following fully to the assertion scribe by government the scholarly opin- from the exhaustive and foreman, the and that it be returned Judge ion of Fee United States v. grand judge jury to a Smyth, approval subsequently cited with court. All doubt will thus be removed Supreme Court Sullivan as to whether really the indictment States, supra. grand jury. act of the jury grand is similar “The himself takes the General notwith- jury, convict who trial grand pow- position that the has the to ac- standing positive instructions return a er to valid without may pardon notwith- quit and who signature Attorney, of the District guilty. standing to find a direction but contends an that such indictment does are Unquestionably, charged require the defendant therein necessity follow under plead it, appear to answer or to They prosecutor. can orders of give indictment, bond. Such an accord- present whether an indictment ing General’s conten- 294.) (104 F.Supp. will or no.” tions, is far innocuous so defend- concerned, ant unless and insists until the Unit- one his of offenses assistants signs. meantime it is executive function conceded ed is an laws; support quoted protect 9. In conclusion, its and enforce sworn quotes usually following you an Fee he is realize foot- must experienced intelligent, note 44 from Jurors, act- the Manual individual Grand forget prepared sincerity. Federal But do in all viewpoint Jurors Association for the from the Eastern Dis- he is agent Congressional only lawyer, York, jury, trict New Rec- ord, February Department of Justice A1115: Federal “ legal only place ad- ‘8. What he is is the law Attorney (or assistant) This does his visor opinions, functioning grand jury? in his him infallible not make although position experience naturally You must accord him the re- ju- spect respectful government, require due an officer of attention 178 deraigned by Cir- from ex- As the Seventh General ment. well said power ecutive vested the President to cuit: faithfully “take laws be ex- care that the grand jury is, a “While II, ecuted.” U.S.Const. art. 3. The § system, sense, part our court of short of the most answer is that one exercising func- its traditional when important fundamental and of the laws independence possesses it an tions faithfully so to be executed is the clear unique. Its explicit provision of the Fifth basic the three derived from none of Amendment the Constitution that “No government, but of our divisions person cap- shall held to answer for a people directly rather from

ital, crime, or otherwise infamous un- themselves.” presentment less on or indictment of a 1956, Jury, April In re 1956 Term Grand * * 263, F.2d 239 adopted reality, Moreover, point Fifth Amendment of law and grand jury developed plenary inquisitorial power as it had then been the grand England many in turies, jury impinge over the of cen- course in the does part slightest upon made it a of the funda- of function the executive prosecute mental law of the United States for the or not General to prosecutions institution of prosecute crime.10 offenses grand jury originated long Thus the States, be- for as soon as the indictment separation fore powers returned, the doctrine of of or the “The was made Attorney may the constitutional of our basis leave * * government. frame of 48 same Con- file *.” Rule court a dismissal separated (a), majority express stitution which the three F.R.Crim.P. The powers government adopted holding the insti- the view that their tionary power of a discre- tution of the It At- follows that of the United States prevent nice distinction torney need be drawn as to is needed an indictment grand jury may perform whether the to remove some doubt as to the constitu- some depart- tionality requirement function of the Rule 48 executive dispute tuting investigation rors. Should own arise their between jury, knowledge taking him and the sus- recourse a rumor or judge through picion expanding should be had to the federal who wit- you.’ see, compre- administered the oath to shall nesses. As we this grand jury power duty: power this hensive also remains at To ‘7. pendence insist at all times the inde- hour. The Constitution of the United grand pres- preserved grand jury of from with any sort, sures of whether these stem all its and inherent character. * ** prosecuting cope from the official or No other can instrument ” * * organized court *.’ cuts across with crime which lines, conspiracies overthrow state following Fee makes the addi- States, government opinion

tional assertions in his as to alleged rectitude deviations power grand jurors: who have been entrusted those “ * * such, *. As with its essential government public trust. Even plenary elements gate to investi- unan- the most virulent are critics secrecy deliberations, of its imously grand juries in accord that preserved it was the Constitution sys- preserved federal must be only pro- of the United States not (Opinion pp. purposes.” for these tem permit pub- tect the defendant but 290-291.) spirited citizens, lic chosen demo- procedures, corrupt 1956, cratic to attack 10. See Costello v. United 406, 361, conditions. A criticism of the action 76 S.Ct. U.S. 397; Bain, parte is a criticism of Ex L.Ed. democracy (Opinion p. 288.) 10, 11, itself.” 30 L.Ed. U.S. “ * * grand jurors, by April Jury, *. But In re 1956 Term Grand secrecy proceedings, use of their F.2d Cir. stubbornly retained the of insti- course, will, That forward. refusal for a dismissal leave of court agree secret con- do and not in the pending prosecution. We court permit 48(a) To room. Rule fines doubt exists. compel the United primarily authorize the the district court to intended beyond proceed protect not to States defendants power point prosecutorial upon prosecutive would the invest functions confer judiciary, power in under the States which in United the Weinfield court. Blouse, Con- is the executive Neckwear Constitution reserved to & v. Greater Skirt government. may S.D.N.Y.1964, F.Supp. Ass’n, It branch of the be tractors 483, 489-490, court, justice, the situation that of described the interest well may showing might require good faith, indictment after a of arise which Attorney or United a General the statement of rational basis for the some where prose- Attorney unlikely to does not wish dismissal. In of bad the event pres- action, court denies district or cute and where the faith ent, may irrational not here ap- dismissal: be the could court point prosecute to counsel the case. Attorney of the head is “The General brief, may the same in- have the Justice, part Department a the justice power to herent to administer the branch Govern- Executive the government does to the defendant. as it to leave Court ment. Even were question is not us and That now before de- the indictment the dismissal of may very Except for never arise. a Attorney nied, would General the discretion, however, court’s limited the right the to adhere still have Department’s power to withhold leave to dismiss an indict- view solely protection is indictment supported by proof ment cannot be the defendant. merits, and ac- a trial of the Attorney under The is United States cordingly, dis- exercise of his mandatory duty to an affirmative and cretion, decline to move case grand jury to lend assistance a circum- trial. Court in that making to institute effective its decision is- without to stance would be grand prosecution. a criminal When to sue a mandamus other order returning finding jury an insists indictment, compelprosecution of the Attorney indictment, General must invade since a direction would may though acquiesce, action its be even separation powers the traditional contrary the advice of the United con- doctrine. And if the indictment Attorney. prosecu- further quo, status tinues to remain in each matter. tion the case is another position be in defendant would a move for dismissal of agree proper enforcement We 48(b).” under Rule require the law does not that indictments permitted every jury be should returned in case where be sphere, policy may probable while function in its traditional Public cause exists. enforcing separa- require time at same in some instances that a case not prosecuted. tion of doctrine as between the be public policy may Such consideration judicial executive and branches be to and submitted government. done, by be As This can best acted on well said deed, mandatory, by requiring it is E. in an article Colonel R. Mattoon Lawyer Force,” Attorney to United States assist entitled “The a Social * “* * grand jury preparing Ala.Law, 55, (1954): indictments system lawyer return, wish to consider calls on the by requiring the United States At- have faith in the man-—-that the common torney sign average on, indictment that citizen can relied when Then, given adequate explanation, be returned. once the indictment to under- returned, Attorney problem, it, apply General or the stand reason to Attorney go can refuse to arrive a wise This faith in solution. General, problems to solve his the common man recognized 48(a), of a in Rule to move the essence his own reason democracy.” in which of the indictment. The court In the few cases dismissal require such motion the United States unable then pre- grand jury persuade of a and the Attor- heard court. Instead ney disagrees secrecy, action, General shadows its vention prevent formal, public his recourse is not to would be a dismissal in a finding returning judicial proceeding. do from an ef- not believe fíWe Acting indictment, fective but to file dismissal 48(a), of the indictment under Rule F.R. instruct a District At- grand jury torney Crim.P.11 to refuse to serve a directly help requested when prevent For the General to grand jury and when is ordered returning an indict- judge give presiding such the trial would, effect, ment confine be to the question service assistance. That grand jury returning present- a mere Smyth, supra, arose in United States derogates grand ment. That from the appeared be- where to be a conflict jury power its alternative to return ei- tween assistant district presentment ther “a or indictment.” U. S.Const, superiors. his The court concluded: power amend. V. The the * * * grand jury any So, grand cannot be limited in case “. when the presentment; may to a jury impaneled, it return an in- is an Assistant Attorney goes dictment. into grand jury the So far as the room. Looking beyond present controver- grand jury public are con- sy, grave danger one can foresee the in- cerned, is United States At- herent in such a restriction of the torney. accept All He him such. grand jury. grand of a jury pre- If a He need not wear a uniform. need returning vented from an indictment no grand present jury author- presentment, more effective than a signed by ization the United States may permanently statute of limitations Attorney. duly He an officer des- bar presentment for the crime. When the ignated acting by virtue his public, is made the accused appointment. power He has to be may get beyond flee or witnesses present grand any session jurisdiction of the court. For all jury freely talk to them practical purposes, case could be dead grand jury room, side or outside the point and there Attorney would be no future grand except when de- causing present- General voting. liberating or His ment to be followed an indictment. destroyed by any is not order still, Worse accomplished this could be Attorney United some- States that in torney secrecy, shadows with the At- proceedings one else conduct being required General not to dis- by any controversy his close reasons. office How much better is Attorney.” United system constitutional which the added.) (104 F.Supp. (Emphasis grand jury can find and return an effec- 306.) tive prosecu- which a argument

tion for crime is instituted. At that In brief and in oral the Act- point Attorney ceases. states ethical General effectively It is support checked and overbalanced or moral considerations re- Attorney theory Under General’s the court itself held power. has separation powers, logical parte States, 1932, as to it is Ex argue Attorney General or L.Ed. 283. Attorney however, is, the United States has the Such result somewhat prevent issuing startling. a bench warrant anomalous or at least though on an indictment even been signa- positively requires the permit F.R.Crim.P. assistance to fusal Attorney. signing permit of the in ture of the District or to attorney. government He dictment By way precaution, let state that us and Rule on Rule F.R.Civ.P. relies nothing to reflect here said is intended disagree. 7(c), It We F.R.Crim.P.12 Acting Attorney present upon the Gen- may properly an indictment true that eral, integrity we have the ut- whose pleading type in a described as a Memory goes back, most confidence. how- ease, the action it constitutes criminal but ever, days Attorney we had an when Attorney grand jury and not the being suspected corrupt. General logically contend General. No one could There is no that that will assurance never General that the establishing again happen. We are charges, preferring precedent cases; we are con- other permitted them is because neither of struing Constitution; we should retain during grand jury room remain in the great bulwark, intact constitutional grand jurors or when the deliberations grand jury. the institution of the refuse to indict.13 It vote a bill or true in is well Court, On the cases before the vestigate, reached conclusions but agree we Brown that binding on the him as to facts are not required, upon jurors are unlimited request jury, to draft powers. inquisitorial Their in their of forms indictment in accordance with limited to of information is not source majority its desires. There is a thus of agencies by investigative facts disclosed holding. the Court in favor of that We by At or to information furnished go further, and think that Attorney.14 torney District General or the sign required any to lawyers judges It is often true that may by be found disagree petit of alike the actions grand jury. We concur with the ma legal juries grand juries. Corrective jority appeal as to the dismissal of the of may taken, action be but neither Acting Attorney General and as to grand jury petit nor can be com petition of denial of writ pelled to follow the course action de prohibition. would, however, We affirm by or the sired either the court Justice judgment contempt of civil Department. answer to all The short Attorney. the United States these is the fact that Rule contentions apply We part therefore F.R.Civ.P. does not to an indict concur in and dis- part. 7(c), hand, sent ment. On the other Rule Thompson, 1920, 7(c), See Rule F.R.Crim.P. Rule 251 U.S. provides: 64 L.Ed. 333: signature duty “The an consti- “That the by investigate original tutes a him that he has to certificate and com- plete, susceptible pleading; being read the that to the best of exercised upon knowledge, information, upon belief its own motion and it; good ground support knowledge may there is as it derive from interposed may proper, and that it is not for de- source which it deem * * * lay. dependent For a wilful violation is not therefore its attorney may approval disap- sub- these rules be exertion jected appropriate disciplinary proval court; ac- tion.” continuous and is therefore not ex- by hausted or limited adverse action may signifi- 13. The be different as to -rule taken a its fail- Attorney’s signa- cance of the District act, ure to and hence thereafter be question on an That ture information. us. exerted as the same instances not before subsequent grand jury.” the same or a following of the rule statement approved in United States v. BROWN, (con- transitory anonymity, Circuit author- JOHN R. bination ity, curring specially): political unresponsibility. are must aware that there All now be agree course. I Mine is middle when of the nation times the interests by Judge opinion Jones with the written foregone. prosecution require that be Attorney may be the District will most often be These instances compelled the formal indictment Jury area of ity. national secur- state secrets and re has voted to Grand high, safety so With stakes I concur also that F.R.Crim.P. turn. security country, our and hence the (a) the unfettered discretion in the vests world, ought imperiled the leaving not to Attorney to whether District determine important body decision to a or dis is to be maintained having responsi- political no definitive range of missed. The trial Court’s action bility. sug- hardly And is dissenters, realistic to rights protection confinedto the gest, as do the that these fac- 48(b). defendant, F.R.Crim.P. Jury. tors be evaluated the Grand agree At But I do not that the District What will be the source of informa- their may ignore torney efforts of tion? How extensive will it How be? Jury declining point Grand approach will close a Grand session legal prepare proper the indict form presidential meeting? cabinet How ment have voted to return. On government kept will essential secrets contrary, I am view the Court persons when disclosed to none of whom may properly compel the District Attor subjected as Grand Jurors will have been legal ney act scrivener customary security clearance ? checks Jury. therefore, may, The Court order areas, And even in less sensitive prepare in practical operation prosecutorial legal joint dictment form. Since imperative function makes the need for opinion empower Rives-Gewin-Bell would executive determination. The familiar compel signing to of Court the indict example is the deliberate choice between thing necessarily ment—a encom prosecuted who, those be and those passes preparation writing —I equally guilty, often are named as co-con- align myself with them of the extent spirators defendants, but not as or oth- ordering pre District gov- ers not named who are used as star pare the indictment. ernment witnesses. And in other situa- discussing duty, Before I limited tions, of which the instant case have these comments of in furtherance typical,1 well be purpose the executive’s holding prosecutor Court’s that the specific policies thought to effectuate compelled not be the indict- major importance be of would be frus- necessary step ment—the last to an Jury trated or encumbered awere Grand vitality. dictment’s given prerogative determining sole of prosecution determining a Responsibility when effectively for whether is to be prosecution commenced. a is to be commenced clearly Putting maintained must be fixed. The to one side these factors which power not to initiate indeed govern- is awesome. on the bear delicate nature of But it has decisions, to reside somewhere. And mental there are technical rea- clearly pinpointed is, indigenous the more it the more sons to criminal law which public through equally compelling. interest is served are Federal crimes publicity focus of relentless high- more and are more for violation of may not, safety, ly complex decision. It jurisdic- with be left statutes. Federal body great to a indeed, whose tion, virtue is the com- activity whether the consti- weapon 1. of specifically prohibited Use tlie Rights “law” is a common the Civil against seeking See, g., 203(e), members a class ofAct e. § rights. (1964). achieve civil now Such action is § C.A. 2000a-2 why hearsay, or depend from crime, on intricate can “authenticate” federal tutes a knowledge imprimatur facts, many beyond or different better laymen composing from other experience that which would come than polled Jury.2 Jurors, be each of whom can of the Grand The aim Grand Grand vote, protect- Judge, Jury not as to his but indictment as the means majority return did vote whether the citizen initiation charges hardly bill.4 the true unfounded advanced Jury permits on a rule that the Grand signature of the The fact is that prosecution its own to initiate the when awe- has much more District conscientious District consequence. Without a doubt some legal certainty knows to a that a federal together signature, with that crime cannot be established. formal, Jury’s foreman, ef- is a Grand prosecution. What fective initiation incongruous Finally, it me seems to might the absence assert, dissenters, as do the signature, Attorney’s deter- we need not signing of minis- the indictment is a it, whole has mine. With having terial act other function than previously And what was been started. course, am, I of authentication. one right discretionary on the an unfettered language import aware prose- part of the executive to initate employed I been in some the cases.3 motion has now set in cution been formally why do not see an indictment only stopped the executive can signed reported foreman and taking for dismissal affirmative action5 proceeding a solemn as the which F.R. all of uncertainties Jury act of the Grand needs “authentica- generates.6 48(a) Crim.P. complete And I tion”. am at a loss to signature Attorney— I firm that But while am understand how the District significant which reflects act excluded as a vital voting, 6(d)— discretion while it exercise of an executive F.R.Crim.P. imprisonment See, examples, prosecution Holt] vio- had ordered ‘Prophets’ Act, group Drug fanatics called lation the Pure Food & language, visit- Cir., 1963, [he] seditious Liew v. Van friends, by Lacy, their who one of ed 321 F.2d and 321 F.2d and for registration that he carried informed a servant message failure to file SEO state- Lacy Lord God.’ ‘from the ments of oil sale leases subse- T Holt: quently and told Lord was admitted con- construed to be investment prophet you Lord from the a tracts, Stratoray come Oil, Roe & Inc. v. thee, God, me to has sent 1961, who States, Cir., F.2d grant prosequi a nolle thee would have 316 F.2d 617. servant, Atkins, whom for John opin- 3. See note 6 of the Rives-Gewin-Bell prison.’ Holt Lord has into thou cast Interestingly, enough, ion. in all but prophet, replied: a ‘Thou art false actually signed, one the indictment was lying If Lord God a knave. signed though by the District Assistant would been to the sent it have had thee Attorney, not District him- Attorney-General, it for knows that signature self. the other belongeth Justice not to Chief typed. yet No case has held an in- that I, prosequi; grant as Chief a nolle but dictment which liberately de- Justice, grant a warrant to commit can vitality. any ” refuses to has company.’ to bear him thee signature 4. In the instant case or other People Sidener, 58 Cal.2d action of the District was not Cal.Rptr. 697, 698, n. P.2d Jury needed to establish what the Grand 641, 642. desired to do. agree- be in 6. The Court seems to virtual protection that reported ment of this rule is 5. The humor of incident as Supreme alone. fact is the defendant But the Court of California does not yet great in we have so held case direct- a this historical truth: conceal question ly presenting Campbell’s “An in 2 incident related event, standpoint Lives of in- viewed from the the Chancellors 173 is of parties here, terest neither the District Attor- [Lord this connection. After thing prosecution help. report here lack- initiate ing Unless its official is have —a positive significance equally presentment am Dis- no more a than —I duty prepare ambiguous procedure trict has the —a loose and which requested to do so the indictment when will not constitute the initiation a logical Jury. If this lacks Grand essential that the —it only urge consistency, great I that an in- can dictment be with care and drawn Jury, precision. im- stitution as old as Grand Even with the modern planted liberality proper procedural matters, as idealistic as the structure born, Constitution, criminal, one not out of the logic, both civil and history’s fairly but out the needs be valid must each assert essential experience. rich element of the crime.7 It is denial of profession all that the law stands is, not, Jury or is Grand Whether important juncture to think this beyond agency outside of the tradi- work, get Jury in its can Grand certainly powers, three it exists. tional along lawyer. without The need is It as a institution with exists distinct imperative. help The source is re- important operates It functions. as an It stricted. has neither the means nor the agency established in connection with the obtaining capability using outside Judiciary. customarily Federal It very counsel. The nature duty charged important with it —as Jury proceedings impermissible makes it specifically was here look into all —to private par- for ticipate counsel to work with and crimes Federal Government. Jury inquiries. in Grand And it duty charged Since it is through suppose is unrealistic to ascertaining whether, opinion confrontations, some sort controlled Jury, probable the Grand there is cause Jury, emissaries, the Grand or its could believing that federal crimes have enough per- disclose of the facts heard right committed, only been it lawyer mit the to draft the indictment duty imperative but the to make a re- without, rending time, at the same port of its conclusions the tribunal secrecy. veil of giving it those instructions. As it is an law, instrument of the it is entitled to why There are a number reasons report make its official in a mode and Jury’s it is essential that the Grand con- terminology befitting atmosphere. language clusions be reflected in may Broadly stated, report legally it in one of proper sufficient and form. ways. may formally report three It First, perhaps foremost, in no no It bill. return a true bill indict- way Jury other can the Grand effective- customary ment in form. Or it re- ly carry obligations charged out its presentment, turn a fortunately a constitutional mode Judge. important to it An his- longer practiced. body, ought torical not to have cast thing simple: To me the seems recognition or, seemingly about for frus- charged report. the Grand It case, trated as it was in this mill around report. determines what it is to It de- the courtroom or its environs in a sort reports. in termines form which it helplessness. Although, of hat-in-hand as Once it determines that it what wants holds, the Court the “indictment” thus report tois be in form a of true returned would be ineffective without the indictment, legal obviously signature bill it needs Attorney, of the District re- ney nor constantly re- General were 7. We have fresh reminders of quired 48(a) might importance assume that Rule the substantive of the formal ultimately reserving sufficiency See, g., not be construed as of indictments. e. Judge States, 1962, considerable to the District Russell v. United 369 U.S. determining in himself to enter whether 8 L.Ed.2d Smith States, 1959, dismissal on motion. the Government’s v. United Actually, course, of con- the dissenters’ S.Ct. 3 L.Ed.2d 1041. carefully hedged. currence this is legal sepa- time-proved and the wisdom the porting in traditional conclusion its things. First, powers deter- it which commits ration of do two form would (and responsibility) Ex- clearly conscientious mination reflect the would And, ury the dissenters’ This route avoids J itself. ecutive. conclusion of the Grand time, sharp- process time second, would, and the same which at one same regards signing ly of no real con- as be- the act of view reveal the difference being “really” sequence, Jury prosecut- essential and the Grand tween the prosecution, ing means attorney. but which initiate the may nothing Executive imme- since the important rea- to the second This leads diately dismiss the demand the Court are of the Executive son. The proceedings. an- dissenters Unless the determining those whom so awesome ticipate post-indict- on a that the prosecute, there it will that where not 48(a) will motion to dismiss Rule ment uryJ Grand is a difference between the appear to be undertake to determine —or Executive, this determination “good” doing are so—whether resulting should be conflict views enough grounds de- Executive’s great open pow- court. revealed With public prosecute, not to termination great responsibility. er comes Disclosure disclosure, pinpointing re- so vital of this and the result- difference view sponsibility Ex- within the ranks subject ing impasse would decision of this greater ecutive, be no than will scrutiny of an in- Executive to the unsigned proceedings in which formed electorate. The issue would be together reported with the indictment clearly responsibility, drawn and the both impasse. fact legally public mind, plainly and in the specially For reasons I concur these fixed. thing There would be the sort order, contempt in the reversal reflected this record Acting Attorney dismissal only way public in the loosest could the appeal, the denial of the General’s Jury purposed see what it was the Grand prohibition. writ of to do and what the Executive declined help it to do.8 And for future cases Judge (concurring WISDOM, Circuit (as the Court unless holds it does specially): Judges Rives, Brown, concurrence of Ge- Bell) win and the District many opinion-writers are too Too like prepare must form danger indictment for many spoil- cooks. I brave Jury, the Grand ing savory even that limited dis- only our because broth closure would not available. This is competing dish the dis- aroma of the (through so indigestible because the Court another senters offer conceals its majority) holds that the gredients. trial Court compel sign judicial crafts- The dissenters show the indictment. There would thus be no writing highest manship order for, expected occasion relief to be persuasively “the traditional about from, report oral to the Court sphere” not turn- while pending impasse. holding up case that a court one By following pre- compel prosecutor prepare course we middle rightful fully requested by independence serve bill jury. inquisitorial in its role Not one case in all Indeed, colloquy being Jury secrecy of it or an intrusion tbe —some quoted early part part in the of Rives-Gewin- At- of the Court or the District opinion torney Bell the Court and the into the affairs reserved exclu- —between Jury, contempt sively Only pro- Grand and the District it. in the Court extremely ceedings resulting reflects on all hands in an order which we guarded statements, inquiries and re- hold to have been unauthorized was the impasse sponses vaguest couched sort of between the Executive language Jury any detail. lest there be a breach of Grand Grand revealed 186

years “capital, 1166 I sub- between and 1965! or otherwise infamous crime”. language provides mit that result reached in the dis- This no aid and com- grand product of sent is the a misunderstand- fort the notion that either meaning “pre- jury of the historical to com- has indictment”, pel prosecution grand jury sentment and a failure to has once the give effect difference between exercised its accusatorial function. “In grand fact, reigns just the sword of the shield confusion as to what a jury,1 approach grand jury 2and an abstract can do. Federal [federal] setting disregards the factual in which relationship statutes are silent on the presented. grand the issue is which is to exist a federal between jury, the district court which summons Nothing any position it, attorney’s of- and the United States judges majority “ignores” in or tends fice in district. From 1789 to the purely inquisitorial to diminish the role present, Congress grand no definitive jury.8 made of the federal But when concerning grand jury pow- statement goes beyond inquiry role and re- 3 however, “every is, ers.” There reason port accusatorial, and becomes no aura grand to believe that constitutional our sanctity of traditional or constitutional operate jury was substantial- intended surrounds the The Grand ly English progenitor”.4 Jury place Rights like its earned its in the Bill of shield, by its its sword. English usually Historians trace the grand jury Assize of Claren back to the I. Henry don II in issued based requires The Fifth Amendment Anglo-Saxon not on antecedents but on grand jury’s “presentment indict- inquests.5 Norman-French function prerequisite ment” as a to trial for a early juries “to dis Jury p. Handbook, 1. The Federal Grand America, D.C.S.D.N.Y.1953, of Supp. 111 F. 8, describes the functions of the Grand of Florida ex rel. 858 State ' Jury in these words: Brautigam Report v. Interim of Grand “The Grand is both a sword Investiga Jury, Fla.1957, 93 So.2d 99. justice and a shield of sword be- Congress —a tions and the administrative criminals, cause it is the terror of agencies ju lessen for federal the need protection a shield because it is the investigate corruption public ries to against unjust prosecu- the innocent tight con office. General’s important powers tion. But these ob- attorneys trol over local United States viously equally grave responsi- create lessens likelihood of a United States powers bilities to see that such are attorney’s failing investigate pros perverted in no wise or abused. With proper in ecute case. powers, its almost limitless a Grand Comment, Powers Federal Grand Jury might, unless motivated Juries, (1951). 4 Stan.L.Rev. 69 See highest justice, sense of find indict- also, Cohen, Inquisitorial Dression & ments not warranted the evidence Juries, Functions Yale L.J. oppression and thus become a source of (1932). to our citizens.” States, 1956, 4. Costello v. United inquisi- 2. The encomia addressed to the 406, 408, 76 S.Ct. 100 L.Ed. grand jury properly ap- torial role of the 397; States, 1962, Russell v. United ply to the traditional common law U.S. 8 L.Ed.2d 240. giving or a in those States still In 1951 Senator Nixon introduced a bill jury a free rein in the exercise of its (S. 2086, Cons., defining Sess.) 82d 1st inquisitorial power. grand ju- Federal pro- the viding ries, distinguished from State appointment special of a juries, do not have the of the lat- any grand jury counsel to assist ing desir- investigate public ter to institutions or investigate criminal action on public officials, the actions of where own its initiative. The bill died have no reason to believe that a crime Judiciary Committee. Compare has been committed. Smyth, D.C.N.D.Cal.1952, Stephen, History States v. F.Supp. A Criminal Application England (1883), 185-186, of United Law 252- Holdsworth, History English Electrical Radio & Machine Workers

187 presenting jury present in law could and facts answer en common act cover King”.6 knowledge, by quiries its to them the own or on the information addressed others, primary purpose furnish the or on the written bill was to Crown’s only King when were of indictment. But this bill the names of those who publica, preferred grand jury by by repute, was defamed common fama analogous historically to Crown endorsed as a “true bill” was an institution law, the accusation Roman both known as an indictment. infamia7 meaning accepted usage of This was the when which add content phrase adopted. Fifth crimes” in the Amendment was Black- “infamous explained: princi stone Fifth Amendment.8 The “whole early grand get ple” presentment, generally taken, “was to “A very term; information from comprehensive useful to the Crown a includ- likely principle only presentments those most to have it —the properly inquisition.” called, the ancient This ordeal inquisitions so of of- but also by by private prosecution fice, by grand jury. trial avoided and indictments a “appeal” properly speaking, and enabled the Crown to dis presentment, A escaped cover would criminals who have taken the notice thereby by private parties, any from their own knowl- oifence providing edge observation, another source of revenue without improving fines and forfeitures well as bill of indictment laid before them machinery preserving king. As, pre- law suit procedure nuisance, libel, order. The the benefit sentment of a like; Crown. which the officer of the court must afterwards frame an beginning From its until its abolition indictment, party present- before the English 1933,10 Parliament II; 15, dicial Evidence c. Edward § (1956), 312-323; Laws Pollock Livingston, Complete (1873) I— Works Maitland, History English Be- Law 372, 11-249-250; Frankfurter, & Pound (1959), fore The Time of I Edward 642- 176, (1922) Criminal Justice Cleveland 647; Plucknett, History of the Com- 211-212, Survey 248; Wayne Morse, A (1956), mon Law 111-120. Jury System, of the Grand 10 Ore.L.Rev. Holdsworth, supra, 5, 6. n. 321. (1931); Pound, Jus Criminal “ * * * (1930) 186; Moley, tice in American 7. The Roman infamia was: (1929), pronounced Politics and compe- Criminal Prosecution moral censure 127-128; Commission, Re Wiekersham tent on individual State port on community, Prosecution the National members as a result En they Commission on Law Observance of certain actions which had com- (1931) 125; Willoughby, mitted, forcement or certain modes life which Principles Administration, involving pursued, Judicial had this censure (1929) disqualification rights 180-194. Section for certain both pro public private Greenidge, A.L.I. Code of Criminal Procedure and in law.” required all (1897), vides that offenses heretofore Infamia 37. prosecuted by to be indictment n Eranklin, Infamy and Constitutional prosecuted in either indictment or Liberties, (1954); Civil 14 Law.G.Rev. 1 formation. In 10 states the Constitution Eranklin, Roman Law The Constitu- legislature modify allows the or abolish tion, 621, 623-26, 38 Tul.L.Rev. jury. Senator, the sor, then Profes (1964). twenty-six Morse found that in 1931 Plucknett, supra, require 9- did not states grand jury. Model Code of Criminal 1 0. Great law reformers have criticized Procedure, Appendix 414r-31. But see as an anachronism in a Dression, Erom Indictment to Informa government subject modern and as tion, (1932); Younger, 42 Yale L.J. 163 secrecy. abuse because of its Most Attack, The Grand Under 46 Journ. the criticism has been directed at (1955); Hall, Crim.L.C. & P.S. Analysis grand jury’s inquisitorial power. And Jury, of Criticism of the Grand most of the criticism came before the (1932). 22 J.Crim.L. 699-700 years. totalitarian movement recent Jeramy Bentham, 3 Rationale of Ju- * * * put presentment, to answer it. be are accusations. The ed can jury. by grand however, a written accusa- An indictment is is made persons hand, indictment, of a or more is tion one other An misdemeanor, preferred to, crime someone else’s accusation which grand upon by, presented up oath a bill of indict- been drawn into a * * * grand jury jury. grand preferred When the to the ment and they evidence, jury, if think heard the have who the evidence examine accusation, they groundless used support it a it and find it to be a then formerly finding endorse on the back true bill. an indictment or, bill, ‘ignoramus;’ grand jury playing we know role of is it; nothing intimating, pre- prosecutor. a a For that reason though might possibly up the facts sentment must drawn into true, appear truth did not bill of indictment and resubmitted Eng- they now, grand jury.” Orfield, assert them: but Crim- lish, absolutely, Ap- more ‘not a true inal Procedure from Arrest bill;’ way) (which (1947);11 peal, is better found;’ party may then the ‘not Professor Orfield concedes there without, discharged argument farther answer. be some that the Fifth Amend- * * * they If “presentment” are satisfied of the ment an uses term accusation, However, truth then alternative for “indictment”. bill,’ upon it, ‘a antient- endorse true he writes: ly, ‘bitta vera.’ The indictment [“presentment”] the term “[I]f found, party then said to be Fifth used in the Amendment stands indicted.” Blackstone’s Com- meaning when the Consti- it had mentaries, IV, XXIII, pp. Vol. C. adopted, a state- tution means 301, 302, by (Italics supplied 305. grand jurors by ment facts George Editor, Tucker, St. which an would be subse- edition, 1803). the First American quently framed United Amendment, therefore, does Fifth attorney, or it mean an accusa- grand jury not offer a a choice between grand upon pre- jurors tion presentment or indictment. Unless spe- sentment facts to them preferred is a bill of indictment to the acting prosecutor private cial for a grand jury at the instance the Gov- longer no individual. it is used But ernment, there no indictment. It can be in the federal courts because of the entirely in the hands of the Govern- availability constant of a ment whether an submit accusation grand to assist leading present- to the jury and because of the decline ment the form of an indictment and prosecution by private individuals.” serving pleading as the initial in a crim- (Emphasis supplied.) Ibid. 158. , prosecution. inal presentment Criminal based on the Professor Orfield finds distinctions grand jury’s knowledge own or on knowl- presentment between indictment edge furnished others inbe dis- “confusing” as, doubt, they are —to- courts, use in federal but it has not been day. explanation His terms read out the Constitution. Hale v. substantially similar to Blackstone’s: Henkel, 1906, 43, 62, 201 U.S. 26 S.Ct. presentment 370, “Both indictment and 50 L.Ed. 652.12 See also Blair v. ‘presented’ States, 1919, 273, are to the court. Both 250 U.S. Similarly, presented upon Wharton states: “In its oath at the instance of meaning presentment Wharton, stricter has been Government.” 4 Criminal (1957) 1713, p. said to be an accusation § Procedure . sponte, moto, sua made ex mero Henkel, 1906, 12. In Hale v. 201 U.S. whereas an indictment is a written ac testify 26 S.Ct. Hale was called to cusation, preferred grand jury, so, before a refused to do suggests: placebo L.Ed. 979 and Sullivan the Government States, 1954, (which indictment) v. United dictment is not an Kuh, day L.Ed. until S.Ct. fallow some another Attor- lie “Presentment”; Jury ney might might Blow Foul Grand or General not come along (1955). to vitalize it. Play, or Col.L.Rev. 1103 Fair corollary nothing to sum, a natural my Presentment in there is view inquisitorial power, grand jury’s ei- judges the of the in that other ma for inquisition dissenting a jority for an of office or would, judges ther as the purpose. Its use here would prosecutory assert, authorize Government counsel to prosecutory purpose, accomplish “radically grand its not reduce the of the could jury”. grand still jury the because nevr had a power bill of indictment to plenary decline to submit to It indict. had a limited hand, in On the other power to indict —after accusation open presentment court in this case in the form Crown the Government entry appropriate would with an minute preferred a bill of indictment to the gov- many objections grand of the to the jury. meet The common law oath of a position dis- grand ernment’s raised in the juror, as Vanderbilt Justice senting opinion Brown’s pointed out, “says single not a word about opinion. Subject qualification that indictments; to the contrary, on common grand is bound jury ‘diligently law the swore to Gen- his instructions from inquire presentments and true make’. Kendrick, prosecute eral not to Goff Shaftesbury Trial, See 8 St.Tr. 759.”14 and therefore could not draw bills indict- grand juror oath a federal takes ing objection them, I see no to render- today is identical with the common law ordinary other services within his any oath in its avoidance of reference legal jury. duties as advisor to to “indictment”. Aborting presentment criminal majority The decision does not would, effect, convert it into the fa- inquisitorial grand power affect the of the inquisition “employed miliar office jury. jury’s questions plenary No one findings designate centuries to of a power inquire, to to summon and inter- grand jury respect with to derelictions rogate present witnesses, and to either public concern, particularly in matters of findings report and a anor accusation in being officials, fall short by presentment. present- criminal This offenses”.13 use of Finally, the decision does not affect ment would in accord with estab- grand power jury to shield procedure lished in the common law suspected By refusing original understanding law violators. to with the preferable indict, grand jury I framers. it consider to the has the unchal- adjudged contempt. them, duty and was gued, ar- He it is their either to inform seeking custody prosecutes release from on the officer who grand corpus, state, offense, habeas powerless was of the nature of the any inquiry to make in his desire that be laid it acting pursuant them, or, not, or, case since it was do if before if particular charge. (There given them, a question no such indictment be it is prosecutor’s non-cooperation duty give their such information of case; simply court; stating, any in that was no formal to the without charge prior jury’s particular form, to the the facts circum- vestigation.) following language stances which constitute the offense. ” strong implication presentment.’ the Court carries a This is called a prosecutor is entitled to refuse By 13. In Camden re Presentment Coun- prepare a bill indictment: ty Jur. 10 N.J. 89 A.2d “ * * * grand jury ‘If the from 416, 423. witnesses, examination know county, offense committed Ibid. 89 A.2d at 426. presented for which no indictment is ter, therefore, lengeable innocent whether the defend the unjust regarded court, oppression arm of the as the government as an states,17 equally Handbook un- Federal Grand prosecution. And it has the regarded generis guilty, sui institution challengeable power or is as a to shield the jurors people. does mat- or their derived from What should whims response of the executive to ter is that or subconscious conscious community pressures prosecute, or not and therefore induce twelve leading necessarily prosecu- jurors give sanctuary steps take more tion, appropriate guilty. curb keeping the constitutional II. theory of checks and balances. Such recognition grand jury’s of the Because especially necessary, there is check if lodged Bill function is in the shield-like any question grand jury’s and rights, Rights, it bedrock of básic being agreement; if district court’s in say policy national favors is fair to they differ, of course the district power of the a liberal construction of the grand grand jury. The need dismiss the protect individual possi- is rendered acute if there is a more against tyranny. policy official No such bility community hostility against favors the in its accusatorial offenders, individually suspected or Accordingly, role. for and we look should justice race, jeopardize as a before unjust expect to find a check on its ac- petit jury. short, give if we grand jury’s cusations similar to the meaning “presentment same or indict- government’s unjust check on the accusa- gave ment” that Madison others tions. these terms when Madison introduced aspect Rights If one doctrine Congress, there is the Bill of in the First Separation of ing that the Found- jury provision Powers Bill of agreed upon, prin- Fathers Rights is the ways: prevents it cuts both it ciple, Montesquieu pre- as it: stated “To op- harassment and intimidation and necessary power, abuse of pression through vent the unjust prosecution by— very by disposition things, Jury or Grand the Government. power power”.15 should be a check to III. Taking their as institutions found them, the against framers wove a web of checks prosecution of offenses designed prevent and balances abuse is an executive function power, regardless age, origin, prerogative within the exclusive character the institution. At the General. shall be “There time, sophis- same the framers were government too seat of executive de- ticated to believe that the three branches partment Department to be known as the government absolutely separate, were Justice, General, and an who air-tight departments.16 It does not mat- shall be the head thereof.” 5 U.S.C. § Montesquieu, Spirit 15. conclusively of Laws as illustrated the exam- (Edinburgh, 1772) XI, ple eye, Bk. O. IV. in his can amount to no more that where the whole this, power than Madison, example, 16. in wrote No. 47 department of one is exercised may clearly of the Federalist: “[I]t the whole possess same hands which that, saying, inferred in can ‘There department, of another funda- liberty legislative where the and ex- principles mental of a free constitution ecutive are united in the same are subverted.” person, body magistrates,’ or, or ‘if judging separated Handbook, Jury p. be not 17. Federal Grand 9. legislative pow- See, executive In re Presentment ers,’ (Montesquieu) Ellison, F.Supp. did not mean that of 375, D.C.D.Del. par- departments ought these to have no aff’d 133 F.2d cert. In re den’d agency in, tial over, no control Ellison, 318 U.S. 63 S.Ct. meaning, acts of each other. His L.Ed. 1157. import, his own words and still more official, in Attor- the chief law-enforce cretion United States 291. That power- ney. the Federal The federal courts are ment officer of Government taking president with “the hand of the less interfere his discretion- ary power. the laws of the United States The Court cannot com- care protection complaint, pel prosecute the interests of the him legal proceedings indictment, or even an whatever his faithfully- remedy acting. of offenses be reasons Fassenden, 1922, 258 duty lies, Ponzi v. executed.” dereliction of his 309, 311, courts, but, U.S. S.Ct. 66 L.Ed. with authority, government 607. He “has the it is executive our branch duty, supervise ultimately people.” made his the conduct with the brought Pugach Klein, S.D.N.Y.1961, of all suits including States”, F.Supp. 630, begin prosecution”. “to criminal “Congress, well aware of this discretion Co., States v. San Jacinto Tin challenged has never its existence.” 273, 278-279, L.Ed. Schwartz, Federal Criminal Jurisdiction general super He “is invested with the Discretion, and Prosecutors’ L. &13 Cont. suits, intendence of all and all the (1948).18 64, 83 Prob. attorneys bring district who do them Cases, 454, In the Confiscation 7 Wall. country the various courts in are (1868) Supreme Court, 19 L.Ed. 196 placed under his immediate direction objection over informers entitled to Id., p. 279, p. and control.” 8 S.Ct. at fees, Attorney General, allowed the in his 853, Neagle, 1, and In see re 135 U.S. discretion, to dismiss libels for the crim- 66, 10 658, S.Ct. 34 L.Ed. 55. inal condemnation of certain vessels un- permitting der a statute seizure “[T]he district has absolute property knowingly condemnation of prosecutions, control used over criminal against prosecute, any can or aid insurrection the United dismiss refuse to duty responsi of them States. statute made it at his discretion. The bility wholly President see to it that such his.” United States v. Woody, property D.C.Mont.1924, was seized condemned. The 2 F.2d 262. The only upon statutory Court relied not determination of whether and when to prosecute Attorney policy “is a to con- matter of prosecuting prosecutions trol all officer not and civil actions for de brought by against States, termination of the courts”. upon Buckley, 1942, principles: U.S.App. Columbia but v. also common law 75 D.C. 128 F.2d 17. As another court prosecutions, they “Public until come has stated it: before the court are returnable, point “All of these within exclusive considerations are

up vesting attorney, wisdom direction the district broad dis- points Justice) up publican (now 18. Schwartz Mr. Senator his comment with significant this Burton stated: illustration: “In the “ hearing prosecuting attorney, being on the ‘The confirmation charged, charged, General Jackson as Associate as he is with the Justice of Supreme great responsibility deciding Court, under the nomination was States, attacked because of the laws of the laws Jackson’s failure to prosecute serving, Drew Pearson under which he is whether a and Robert S. duty prosecuted, Tyd- Allen for criminal libel case should be on Senator owes ings. position himself, community, Jackson had taken the policy Depart- it was the Constitution to decide whether the ease * * * prosecuted. my ment of Justice to In avoid should be criminal judgment libel laws when the courts were General was injured party proceedings, rights to the in civil within his prosecute, when he declined to prosecutions stating grounds this charac- and in impair ter would tend to as he did state them under the cir- freedom of ' ” press. (Emphasis supplied.) Re- cumstances.’ L. & 13 Const.Prob. at 83. * * * mind that the United must bear in rule that those Settled recognize any suit, is an officer courts will responsible prima- regularly branch criminal, before executive as civil or them, through and, rily President, to the name and prosecuted if electorate, him, and that the for benefit of the remedy sought is a represented Tieken the same is unless to-wit, desig- one, mandate attorney, a direct some broad one district compelling him to from busi- this nated him to attend to such taking, spe- take, absence, may apper- from or refrain ness in his as respect to cific of action with course tain to of his office.” the duties against pe- pending the indictment judge prosecutor and functions of specifically, we are titioner. More incompatible. are In United v. exercise of ad- asked to review the Thompson, 1920, S.Ct. discretion, overrule the ministrative example, L.Ed. Su- and direct decision the executive preme Court a lower court for reversed which that discretion the course attempting prevent a United States judicial must take. We think instituting prose- criminal officer is be- control of an executive by resubmitting cution the matter to a yond power of court.” 225 grand jury. The Court’s decision was F.2d at 464. expressly right based “the absolute D.C.1963, Kennedy, See also Moses v. prosecute,” of the United States to 762, appeal pending. F.Supp. right upon “the of the Government to prosecutions crime”, right initiate Brokaw, S.D.Ill. subject by judicial to control discre- F.Supp. court denied 412-413, tion. 251 U.S. at petition Simi- to file a motion leave larly, the asking Court has held that a district amicus curiae court to enter jurisdiction court was without directing to refuse At an order the United States to issue a why warrant arrest torney of an to show cause an order by grand jury upon ap- a prosequi the nolle should not be vacated plication Attorney, of the United States the cause reinstated and set for trial. “ because such refusal would bar ‘the The court said: right absolute prosecute’ of the United States to District “That the United ” and would bar “the lawful pub- capacity the in his authority Attorney.” of the United States prosecutor his district lic parte Ex 1932, States, 287 U.S. charged power and with the clothed 241, 129, 53 S.Ct. 77 L.Ed. 283. Attorney Gen- duties of the with the Goldberg Hoffman, Cir. In v. England common the under eral petition for mandamus 225 F.2d a sup- recognized generally law is Attorney General, against was filed the ported Federal courts. Attorney General, and an Assistant Thompson, v. * * Attorney, compel to them United States L.Ed. petitioner to of an indictment. relieve the public representative is the He Appeals dismissed as Court lodged discretion which a in whom At- and Assistant courts, by the controlled is not to be jurisdiction: torney General for lack individual, or an interested or adjudication group individuals issues of interested “Our a wrongs guided by com- consider- raised seek redress must be who them use

ations in the well-settled inherent mitted process. principle separation In United States criminal Supreme supra, Thompson, branches vested in the three keynote government, the Federal courts which is the Court held initia- no to control our mandate. We have constitutional priate repository prevent be- proceedings, that of criminal tion duty prosecution a baseless is the chief prerogative law- Attorney.” duty, enforcement officer whose unlike grand jury’s duty, is to collect evi- generally to order refuse Thus, “courts dence on both sides a case. prosecutor to initiate discretionary ground Second, it is when, within the context of compelled man- law-enforcement, not be policy act which national is in- Discretion, Note, volved, Prosecutor’s security, damus.” because of national con- (1955). 1057, 1058 foreign policy, duct of 103 Pa.L.Rev. or a conflict be- government, tween two branches of directly apply to 48(a) does Rule appropriate branch to decide the matter present case, there has been because is the executive branch. The executive complaint, information, indictment, or charged carrying out national prosecu- preserves rule but since the policy and, generally on law-enforcement complaint dismiss tor’s discretion speaking, is informed on more than levels indictment, drafters before specialized judicial legis- the more preserve intended Rules must have situation, lative branches. such a case, prosecute. In this discretion not analogous prosecute decision not to dismiss; prosecutor move cannot privilege. the exercise of executive nothing to dismiss. What there is executive’s absolute and exclusive discre- prepare do, however, to refuse to can prosecute may tion to be rationalized as Under this the- the indictment. separa- an illustration of the doctrine of ory, (c), requiring the indict- Rule 7 powers, tion but it would have evolved signed by At- the United States ment be without and exists doctrine in coun- prosecutor’s torney, tradi- preserves the purport accept tries that do initiate to whether to discretion as tional doctrine.19 prosecution. vesting discretion to reason IV. Executive, acting prosecute brings They This me to the facts. dem- through Attorney General is two- onstrate, principles than abstract better justice First, fold. in the interests of legal necessity dicta, imperative orderly, administration efficient through its At- law, person agency should some torney General, dis- have uncontrollable unjust prosecution. prevent able prosecute. to cretion bring petit The of to freedom guilty pro- in a verdict is that Goff crucial fact here gressive development of in the Kendrick, Negroes, the law in two testified a suit making meaningful Regis- direction of more the United States guarantees person’s Mississippi, an accused con- County, trar Clarke rights give pro- stitutional Mississippi, considerable to State enforce tection voting rights Negroes to individual before and after under the Four- They protect against trial. Rights do not a base- the Civil teenth Amendment and prosecution. less Ramsey, This is a harassment to Act. 5 Cir. United States v. expensive and an reh’g, accused strain on on 331 F.2d rev’d machinery justice. appro- 838. F.2d long ago, 19. every- ney By repository. “Hobbes told us is made its stat- body Congress deprived it, now understands must him of ute has supreme authority, ordinary be a a conclusive It is assumed criminal cases. power, every every point heavy on state under a he will exercise his Bagehot, English law, pros- duty somewhere.” Con- sense of to enforce the (1872) p. society, protect offenders, stitution 248. ecute and to justice.” “The to determine whether a and with wisdom and prosecuted U.C.Mont.1924, case Woody, shall be to a conclusion F.2d must, course, lodged somewhere, 262. common law district attor- Kendrick testified that some Goff and Criminal Division local advised years Stonewall, Hauberg, Attorney, at Missis earlier seven Mr. registrar regis sippi, presented refused to had the matter “no basis for give application Hauberg perjury forms. prosecution”. them ter them Mr. per They Judge Department’s said that had seen white formed Cox registering, Judge one of whom was a B. sons decision. Cox stated that in his Floyd Ramsey, registrar, clearly tes Jones. view the matter for one registered grand jury Jones had not inclined, tified that and that he would be registered place, had necessary, appoint time or but if an outside attor- year Enterprise, ney present before Missis the matter to the sippi. jury. (I He also that he had testified never find no for a federal against Negro applicants judge discriminated displace the United States At- registration.20 torney by appointing Jones testified that special prosecu- registration tor.) receiving he was near information, table On this had again Stonewall talked with the Criminal Division reviewed its files registrar, charge had shaken hands with perjury and concluded that the Judge presiding judge, him. The W. could not be sustained. General Katzen- Cox, Harold stated the bench that bach, Deputy Attorney General, then aft- Goff and Kendrick should reviewing be “bound over files, er concurred in the grand jury await action of the Septem- Criminal Division’s In decision. perjury”.21 ber called Katzenbach Judge courtesy explain why Cox as a January attorneys In of the De- Department had at the arrived con- partment requested of Justice the Federal perjury clusion that no was involved. Investigation investigate Bureau Judge Cox, unconvinced, requested the possible perjury. completed The FBI present investigation a full in March 1963 and grand jury cases, the Goff and Kendrick Department’s regarded referred the matter to the “palpable which he as cases of Criminal perjury”. In Division. June 1963 the quire Negro found Cox “as a fact from the Reverend G. Goff W. negro companion evidence that citizens have been and his Kendrick to show against by registrar”, why they discriminated over cause shouldn’t be bound although also found there was to await the action of the pattern practice -perjury. you “no of discrimina- I want hear from original opinion tion”. In its on that. Ramsey case this Court noted the “testi- mony they ought put which witness witness convicts “I think to be under Ramsey palpable $3,000.00 discrimination.” about a bond each to await Ramsey, jury. United States v. 5 Cir. the action of a Unless I opinion Judge change my going F.2d mind that to be gross Rives noted that “This case reveals the order. flagrant rights denials of the “BY MR. STERN coun- [Government Negro citizens to vote.” 331 F.2d at happy : I will be sel] testimony. to reconcile their rehearing, 833. And on this Court ruled finding pat- that the that “there was no just “BY THE COURT: I want these practice tern or in the discrimination Negroes they to know that can’t come Registrar” “clearly was erroneous.” this and into Court swear to some- suggested 331 F.2d at 838. No one thing important as that was and is Ramsey may guilty that Mr. have been get by with it. I don’t care who perjury. brings them here. State, 21. When counsel-for the Mr. Rid- “BY MR. I STERN: understand. dell, completed Ramsey’s Mr. direct ex “BY THE And I COURT: Yes sir. amination, and before cross-examina alike, mean that for but I am whites tion, respondent Judge Cox, W. Harold talking just about the at hand. I case presiding, who was stated: put up perjury. don’t intend to with tolerate, government something “I want to hear from the I That will not why right.” about this Court shouldn’t re- All Judge Mize stated that he was not fa- October 1963 Goff Kendrick In just arrested, jailed days, miliar with the matters for two “other than were Judge requested do, $3,000 what placed on Cox me to bond violations to falsely testifying see to it that these two had law for in fed- State witnesses opportunity appear' court. After their before eral Jury.” Judge Department jury, Grand state Mize Jus- advised Jury right Grand filed State Warner, (Civ. had a hear tice Attorney, suit testimony of Messrs. Riddell Hol- 1219, seeking leman, S.D.Miss.), enjoin requested No. but them not to do so grounds 1964, 21, day until state October after (1) Judge that: prosecute Cox States have was to return from his vaca- alleged perjury committed tion. testifying court; (2) while in a federal October 20 Mr. Katzenbach talked with purpose and effect of State’s Judge by telephone, reiterating Cox prosecution was to threaten and intimi- Department’s position. He also instruct- Goff and date and to Kendrick inhibit sign Hauberg prepare ed Mr. Negroes registering and other them indictments. October the foreman Wood, to vote. See United States v. open court informed 772; Harvey Cir. 295 F.2d v. State Judge Hauberg Cox Mr. had declined Mississippi, 5 Cir. 340 F.2d 263. preparing assist true bills. Mize, J.) (per The district court ruled “the stated that States, citing in favor of the United Department of Justice and the United Loney, 1890, re States felt as if that the law and the L.Ed. and U.S.C. § per- fact was not sufficient to constitute (b) prohibiting pur- intimidation for the jury and that an indictment thereon pose interfering voting rights. good.” Judge would be no Cox said: Jury, originally The Federal Grand “I here and order now and direct September 9, 1963, convened on re- you disregard your instructions September 21, Sep- convened on Department from the Justice tember the Foreman of the prepare true bills or no bills as Jury Grand torney advised the Government At- Jury you this Grand direct presenting who was matters sign bills, do and to those bills or no Jury Judge Grand Cox had asked Jury may as the Grand decide under the Foreman to hear several witnesses. * * penalty contempt, September 29, 1964, Riddell, Mr. attor- ney Registrar, and the district Judge Cox hour. recessed for one attorney for the Second Circuit District During Hauberg and Mr. recess Mr. Mississippi, for the State of Mr. Holle- by telephone; Katzenbach conferred man, appear came to the courthouse to Attorney General directed the United Jury. Judge Mize, before the Grand prepare not to charge special Jury to the Grand stated perjury indictments Goff and Ken- Judge (cid:127) —in court—that Cox had reopened. Hauberg drick. Court Mr. re- leaving him, informed before for his spectfully comply declined to with the vacation, that: court’s judged ad- order. Cox forthwith “ * * * “guilty contempt”, wanted him of civil or- Boyce jail to call before Mr. Hol- him dered confined to a in Hinds: Gulfport, Mississippi County, leman ordered the issuance of a cita- Talley Acting Quitman, Mr. Riddell tion to [sic] to- Mississippi witnesses, appear because it before court to show cause impression why they contempt; was his had that should not be held in ought stayed period some matters that be inves- the order for a five tigated days. at least and that should be permitted appear.” ^[*] Against backdrop Mississippi prosecutions. federal This case is un- only clarity in the field of the Nation civil usual with which versus rights, facts, speaking themselves, we have a heated but bona fide illuminate opinion necessity imperative difference between Cox in American Attorney prose- and the General as to whether Federalism discretion to that the Kendrick, lodged Negroes, Attorney two Goff should cute be General Taking prosecuted perjury. a of United States. case, narrow view of the we would be prosecute repre- The decision not to justified holding Attorney that sents the exercise of a discretion analo- implied powers, by analogy General’s gous privi- executive exercise of express powers give 48(a), of Rule lege. law, Attorney As a matter of prosecute. him discretion to Here there General has that is not concluded fide, was a bona reasonable exercise of prove perjury. evidence to As sufficient investiga discretion made after a full fact, a matter of General long tion and consideration of case— concluded, pleaded as he in United case, just both sides of the not the evi Warner, perjury that trial tending guilt. dence to show If the inhibiting would have the effect of jury is dissatisfied with that administra only Negroes Goffand Kendrick but other decision, may tive inquisi exercise its Mississippi registering to vote. torial open presentment and make a conflict, therefore, There is a between said, court.22 It could be that is all society’s (di- interest in law enforcement there is to the case. But there is more luted in this case Gener- to the case. al’s conclusion that the evidence does along everyone else, Court, with This support charge guilt) Kendrick, prose- if knows Goff policy, national forth in the set Constitu- being cuted, in a run risk tried Rights Acts, tion and the Civil outlaw- hostility. community They climate ing racial discrimination. It is unthink- punishment run the risk of important able that resolution of this Registrar, not fit the crime. The who affecting conflict should whole Nation original litigation, provoked runs no twenty-three majority with a lie mem- risk, notwithstanding that the the fact bers chosen from Southern court, effect, district found that Ram- Mississippi. District of The nature of say did truth on not tell the the witness Federalism, looking American to the dif- circumstances, very stand. these ferences between the Constitution and justice require least demands of requires Confederation, the Articles of lodged prosecute the discretion to with question that the to resolve this agency person or insulated from local lie in the unfettered discretion prejudices parochial pressures. This deputy President of United or makes bad is not the hard case that law. enforcement, for law Gen- type up, This is the of case that comes eral. another, way one toms, beliefs, cus- whenever the region My memory, too, goes days, of a col- or interests back to the pointedly policy dissenters, lide national as fixed referred to Congress. Constitution likely It is not when we had “an sus- General diversity pected being corrupt.” that the who men devised But I am not jurisdiction expected to turn over to local aware that we lawless have had more bring juries Attorneys discretionary power than lawless juries.'^ Younger points out, however, removed a district from office every impasse prosecute. Younger, of an known instance who had refused to presentment by politi- People’s after was resolved Panel: The Grand cal action. In one instance Theodore in The United at 188- 1634— Roosevelt, governor York, (1963). then of New

Case Details

Case Name: United States v. Cox

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 26, 1965

Citation: 342 F.2d 167

Docket Number: 22018, 22019

Court Abbreviation: 5th Cir.