OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
These appeals concern three different varieties of allegedly unethical behavior by attorneys for the United States Government.
Appellant Harvey Birdman raises two questions relating to federal grand jury proceedings: (1) does a Government attorney's alleged violation during such proceedings of the ABA Code of Professional Responsibility's rules against an advocate's testimony constitute an offense warranting dismissal of the resulting indictments; and (2) does the dual employment status of a United States Government agency staff attorney who is deputized as a Special Attorney of the United States Department of Justice to conduct a grand jury investigation constitute a conflict of interest warranting dismissal of an indictment? Appellant William Richman raises these two questions plus a third: did the prosecution break its promise "to consider deferred prosecution" for Mr. Richman, so as to warrant suppression of all evidence allegedly induced by that promise?
We answer all three questions in the negative and affirm the district court's judgments of conviction and sentence.
A. Facts relating to grand jury conduct
The facts relating to the first two questions are largely undisputed.
One Dennis Taylor was a senior staff attorney for the Securities and Exchange
On June 13, 1975, the Justice Department designated Mr. Taylor as its Special Attorney authorized to conduct the grand jury proceedings at issue here. After this appointment, Mr. Taylor remained in the SEC's employ and on its payroll, receiving no additional compensation from the Justice Department. He continued to act as an SEC attorney in matters relating to this case, and on at least one occasion acted as an "officer" of the SEC. On that occasion he took testimony of a witness for the SEC investigation, then immediately afterward examined that witness on the same subject before the grand jury for its investigation.
In all of his appearances before the grand jury, Mr. Taylor disclosed to witnesses and to the jury that he was both a special attorney with the Justice Department and an attorney employed by the SEC. When he took testimony for the SEC outside the grand jury room, he introduced himself solely as a staff attorney of the SEC.
On two occasions of which defendants here complain,
On at least one occasion after his August 15 appearance on the witness stand, Taylor, introducing himself as "special attorney with the United States Department of Justice and also an attorney with the United States Securities & Exchange Commission," examined a witness before the grand jury. He also assisted in drafting the indictment with the Justice Department attorneys from the Philadelphia Strike Force. Further, he was present in the grand jury room when one J. Douglas McCullough, then a Strike Force attorney, recommended return of the indictment to the grand jury; Mr. Taylor did not himself make the recommendation to the grand jury.
The grand jury returned indictments against both appellants. It charged Mr. Birdman with conspiracy, mail fraud, securities fraud, securities price manipulation and failure to file required securities reports; Mr. Richman was charged with conspiracy. A subsequent indictment charged Mr. Richman with mail fraud, securities fraud and securities manipulation.
After learning of Mr. Taylor's participation in the grand jury proceedings, defense
B. Facts relating to promise of deferred prosecution
Claiming that the Government did not in good faith carry out its promises to him, defendant Richman moved for suppression of evidence allegedly produced in reliance on those promises and for dismissal of his indictments.
At the hearing on these motions, Mr. Richman testified that he and his attorney had met with Mr. McCullough to discuss cooperation. According to Mr. Richman's testimony at that meeting, "Mr. McCullough explained that he would consider deferred prosecution,
Mr. McCullough testified that he did in fact consider recommending deferred prosecution to his superiors, but decided against it. He stated that he took into account several factors, some of which came to his attention after the initial meeting with Mr. Richman: for example, the number of victims of the alleged offenses, and Mr. Richman's untruthfulness at certain times during the investigation.
Mr. McCullough also testified that he had considered deferred prosecution in the past, at the request of other prospective defendants, but had never ended up recommending it. The attorney in charge of the Philadelphia Strike Force also informed the court that to his knowledge the office had never in the past recommended deferred prosecution, but that he was asked to consider the possibility of deferred prosecution for Mr. Richman.
The district court made the following finding, based on this testimony:
Accordingly, the court denied Mr. Richman's motions.
II. APPELLATE JURISDICTION
The district court denied defendant Richman's individual motions at a hearing on May 10, 1978.
This procedure conformed with that approved by this court in United States v. Zudick.
III. THE DUAL ROLE OF PROSECUTOR AND WITNESS
The defendants both contend that the indictments should be dismissed on the ground that Mr. Taylor appeared as a witness before the grand jury, then failed to withdraw as one of the Government's presenting attorneys. Accepting for purposes of this discussion that defendants' characterization of the Government attorney's actions is accurate,
A. The professional impropriety
The professional impropriety of assuming a dual role as advocate and witness has long been acknowledged by both the English and the American bars.
The ABA has also codified disciplinary rules designed to prevent this conflict of roles and to minimize its prejudicial potential when prevention is impossible. DR 5-101(B) and DR 5-102 of the ABA Code prevent an attorney from accepting employment as an advocate in litigation when it is obvious that he will also be called as a witness; if the need for his testimony on behalf of his client becomes apparent after
The ABA Standards Relating to the Prosecution Function
The commentary on this provision emphasizes the profession's rules against an advocate's justifying:
The courts have shared the legal profession's disapproval of the double role of advocate-witness.
The reasons that have been cited for this judicial and professional reprehension of the testifying prosecutor include the following. First, there is the risk that the prosecutor will not be a fully objective witness:
Second, it is feared that the prestige of a Government attorney's office will artificially enhance his credibility. Although jurors of varying degrees of sophistication will, of course, have different conceptions of the awe due to a public officer, it is widely hypothesized that "[a] jury naturally gives
While the above-cited reasons for the advocate-witness rule all reflect a policy of avoiding the slightest risk of prejudice to defendants, the most frequently cited justification for the rule reflects a broader concern for public confidence in the process of justice. The chief fear which underlies the ethical rule, it is commonly acknowledged, is not that the testifying prosecutor actually will overreach a hapless defendant, but that he will appear to a skeptical public to have done so.
The foregoing considerations and others
The Commentary to § 3.5 amplifies this directive:
The standards for presenting the state's case to a petit jury
B. Legal sanctions for impropriety
The issue before this court, however, is not whether professional sanctions would be appropriate against a Government attorney who both assisted the prosecution and appeared on the witness stand in the same grand jury proceeding. The issue is whether
1. Per se rule of dismissal?
Defendants argue that this court should impose a per se rule mandating dismissal for any prosecutorial testimony in grand jury proceedings, regardless of actual prejudice to the defendant resulting therefrom. In support of this argument, defendants rely primarily on a decision out of the Northern District of Texas, United States v. Treadway,
It should first be noted that in the analogous situation where a prosecutor testifies at trial and then fails to withdraw, the great weight of American authorities have held that such conduct, while reprehensible, does not warrant the sanction of reversal and new trial.
Defendants do not argue, nor do we find, that the prosecutorial conduct here rises to the level of a constitutional violation.
Instead defendants argue that a per se rule of dismissal is required under Rule 6(d) of the Federal Rules of Criminal Procedure. Rule 6(d) provides:
Defendants urge this court to follow the lead of the United States Court of Appeals for the Fifth Circuit, which has held that "the presence of an unauthorized person [under Rule 6(d)] results in a per se invalidity of the indictment."
However, the question whether to adopt this sanction of dismissal does not arise until it has been established that the alleged intruder filled none of the authorized roles listed in Rule 6(d).
Defendants might have pressed the argument that this court should impose a prophylactic rule of dismissal in the exercise of its inherent supervisory authority over federal criminal proceedings.
However, to attempt to serve a public interest in the purity of the grand jury proceeding, by the per se sanction of dismissing indictments, is to disserve another
In balancing these evils in cases of alleged prosecutorial overreaching during grand jury proceedings, the federal courts have clearly established the principle "that the dismissal of an indictment on the basis of governmental misconduct is an extreme sanction which should be infrequently utilized."
In view of the extreme character of this sanction of per se dismissal, we are not persuaded that so broad-gauged a remedy is necessary to supplement existing disciplinary procedures.
2. Dismissal for actual prejudice to defendants
Even in the absence of a per se rule of dismissal, dismissal of the indictment might be justified if defendants suffered actual prejudice from the Government attorney's appearance on the witness stand and subsequent failure to disqualify himself. However, the district court found no such prejudice in this case, and we agree that there was none.
The district court concluded, based on its examination of pertinent portions of the record, that the Government attorney's presentations from the witness stand on August 15, 1977, and September 6, 1977, did not amount to independent substantive evidence:
Our reading of the pertinent portions of the grand jury transcripts bears out the district court's above-quoted conclusion that the Government attorney's testimony added no new material evidence. Although the testimony summarizes contestable substantive evidence, it focusses primarily on the structure of the proposed indictment. We need not decide whether such testimony falls within exceptions (1) and (2) of DR 5-101(B) in the ABA Code, as "relat[ing] solely to an uncontested matter," or "relat[ing] solely to a matter of formality." It is enough for present purposes that this testimony could not "have had independent material significance in the jurors' minds when they considered whether they wanted to indict defendant."
This case is in this respect distinguishable from the facts of the Treadway case on which appellants chiefly rely. There the prosecutor-witness provided independent substantive evidence which was needed to prove a material element of the offense charged in the indictment;
In sum, although Treadway was decided on the basis of a per se rule of dismissal,
IV. DUAL EMPLOYMENT STATUS OF GOVERNMENT ATTORNEY
Both defendants in this case also urge dismissal of the indictment on the ground that an impermissible conflict of interest inhered in Mr. Taylor's dual employment status as a staff attorney for the SEC and a Special Attorney for the Justice Department, appointed pursuant to 28 U.S.C. § 515(a) and § 534.
In General Motors, an Internal Revenue Service (IRS) attorney, who was familiar with a prior civil tax investigation of General Motors Corporation and who had recommended criminal prosecution of the company to the Justice Department, was appointed a Special United States Attorney to assist in the grand jury proceedings. A majority of the appeals court panel concluded that this dual employment status created an appearance of a conflict of interest, warranting disqualification of the attorney. Judge Merritt, dissenting, found neither improper conflict nor appearance thereof. After rehearing, the court en banc dismissed the appeal for lack of appellate jurisdiction. While the en banc majority found it unnecessary to reach the merits, the concurring opinion of Judges Edwards and Lively expressed their agreement with Judge Merritt's earlier dissenting view that "[t]here is no inherent conflict of interest in" the dual Government employment status at issue. 584 F.2d at 1371.
In recent subsequent decisions by other courts, this latter view has prevailed. The United States Court of Appeals for the Seventh Circuit held, in In re Perlin, 589 F.2d 260 (7th Cir. 1978), that no impermissible conflict was inherent in a Commodity Futures Trading Commission (CFTC) attorney's
Both Perlin and Dondich involved attorneys from specialized Government agencies who, like Mr. Taylor in this case, had worked on their agency's civil investigations of transactions which were later objects of grand jury inquiry. In both cases, after the agency turned over evidence of possible criminal violations to the Department of Justice, the agency attorney was appointed a Special Assistant United States Attorney under 28 U.S.C. §§ 515(a) and 534, again like Mr. Taylor in this case. The specially deputized attorneys in Perlin and Dondich also maintained close contacts with their original agencies while working on grand jury matters, as did Mr. Taylor, who remained on the SEC payroll and continued to work for the SEC on matters relating to this case.
On facts substantially the same as those involved in this case, both Perlin and Dondich expressly rejected the position of the panel majority in General Motors. To summarize briefly, both decisions concluded that an attorney representing different agencies of the same Government is not engaged in the kind of conflict of interest which the drafters of the ABA Standards Relating to the Prosecution Function and the ABA Code
In sum, the better view appears to be that there is no inherent conflict of interest or other impropriety in the appointment of an agency attorney to assist in criminal proceedings before a grand jury, and we follow the recent decisions adopting this view. Of course, abuse of an attorney's dual employment status might be shown in particular cases, especially where the agency uses the grand jury investigation to gather information for civil administrative proceedings to which it would not otherwise have access. Cf. LaSalle National Bank, supra. But no such specific allegations are made in this case, nor could they plausibly be on this record. Accordingly, we find no basis for dismissing the indictment on this ground.
V. GOVERNMENT'S PROMISE TO CONSIDER DEFERRED PROSECUTION
Finally, defendant Richman argues that the Government attorney did not in good faith carry out a promise to consider deferred prosecution and that, therefore, all evidence induced by such promise should be suppressed. At oral argument and in a subsequent letter to this court, counsel for Mr. Richman has urged that the recent decision in United States v. Bowler, 585 F.2d 851 (7th Cir. 1978), dictates grant of his motion for suppression. However, that case is inapposite.
Bowler concerned ambiguous language in a written plea agreement. The defendant construed the language as a promise by the prosecution to consider reducing its recommendation as to jail sentence; the Government construed it merely as a unilateral option to recommend a lesser sentence. The court interpreted the agreement most favorably to the defendant, finding a promise to consider in good faith a lesser sentence recommendation by analyzing specific mitigating factors enumerated in the plea agreement. The Government's presentation to the sentencing judge showed no evidence that it had evaluated two of the three specific factors and showed affirmative evidence that it had not evaluated one
The instant case involves different facts and a different procedural history. There was no dispute that there was an oral promise "to consider recommending deferred prosecution," but merely a dispute whether the Government had carried out its promise. The parties had the benefit of a hearing addressed specifically to that issue of fact, unlike the parties in Bowler. After hearing live testimony from both sides, the district court in this case found as a fact that the prosecutor "did in fact, in good faith, consider all of the relevant factors known to him in making his decision against recommending deferred prosecution."
We conclude that the appearance of impropriety created by a Government attorney's taking the witness stand in grand jury proceedings does not on this record warrant so extreme a sanction as a prophylactic rule of dismissal; and we find that defendants could have suffered no actual prejudice from the prosecutor's testimony in this case. We further conclude that the dual employment status of a Government agency attorney specially authorized under 28 U.S.C. § 515(a) to assist Department of Justice attorneys in grand jury proceedings creates neither an actual nor an apparent conflict of interest, absent a showing that the grand jury investigation was exploited for an improper purpose. Therefore, the denial of defendant Birdman's and defendant Richman's motions for dismissal of the indictments was not error.
We further conclude that the district court was not clearly erroneous in finding no breach of the Government's promise to consider deferred prosecution of Mr. Richman, and that the denial of Mr. Richman's motion to suppress evidence was not erroneous.
The judgments of sentence will be affirmed.
Richman Appendix at 66.
DR 5-102 provides:
Former ABA Canon 19 provided:
See generally H. Drinker, Legal Ethics 158-59 (1953); ABA Committee on Professional Ethics, Opinions, No. 50 (1931).
Local Rule 11 of the United States District Court for the Eastern District of Pennsylvania provides that the ABA's ethical guidelines "shall become standards of conduct for attorneys of this Court." See Kroungold v. Triester, 521 F.2d 763, 765 n. 3 (3d Cir. 1975).
The hypothesis that a Government attorney carries an enhanced image in the mind of the average juror also underlies the proscription against prosecutors' expressing personal belief in the credibility of a witness or the guilt of a defendant, in ABA Standards, supra note 12, at § 5.8(b). Id., Commentary, 126-28, and authorities cited therein; see, e.g., Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See also, e.g., United States v. Gallagher, 576 F.2d 1028, 1041-43 (3d Cir. 1978).
Some courts and commentators have questioned the validity of the appearance justification. International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); Enker, The Rationale of the Rule That Forbids A Lawyer To Be Advocate and Witness in the Same Case, 1977 Am.Bar Foundation J. 455, 459; Note, Advocate-Witness Rule, supra, at 1390 ("the tenuous assumptions upon which the appearance of impropriety fear rest have never been empirically examined").
The ABA Code also emphasizes the protection of the advocate's client as a rationale for the rule. See EC 5-9. This rationale rests on the hypothesis that a testifying lawyer is less credible and more easily impeached than other witnesses—a hypothesis contrary to that which supports the rationale discussed above in the text at note 20. The drafters of the ABA Code were focusing primarily on the lawyer for the private client; protection of the testifying lawyer's client may be less of a concern when the client is the Government. Nevertheless, it is clear that the drafters of the ABA Standards for the Prosecution Function intended the same restrictions to apply to the Government lawyer, though some of the underlying rationales for the restrictions might be different. See ABA Standards quoted in text at note 13 above.
6 J. Wigmore, Evidence § 1911, at 788. These considerations are equally applicable where the prosecuting attorney is alleged to have served as a witness in grand jury proceedings. See discussion at notes 53 and 54 below.
289 F.2d at 848, quoting Fay v. People of State of New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); accord, e.g., United States v. Basurto, 497 F.2d 793 (9th Cir. 1974) (Hufstedler, J., concurring); United States v. Cruz, 478 F.2d 408, 411 (5th Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973); Note, The Supervisory Power of the Federal Courts, supra note 43, at 1666-67 (1963).
An alternative formulation of the above proposition is that a reviewing court will not look behind a facially valid indictment absent strong reasons for doing so. See, e.g., Costello v. United States, supra, 350 U.S. at 363, 76 S.Ct. 406 (no dismissal of indictment based solely on hearsay evidence); Holt v. United States, supra, 218 U.S. at 248, 31 S.Ct. 2 (incompetent evidence). See also United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1978).
Section 534 provides, in pertinent part:
Defendants do not challenge the authority of the Attorney General to appoint the SEC attorney as a Special United States Attorney to assist in grand jury proceedings in this case. That authority was extensively examined and upheld in In re Subpoena of Persico, 522 F.2d 41, 56-60 (2d Cir. 1975); United States v. Wrigley, 520 F.2d 362, 365-67 (8th Cir. 1975).
The Commentary to § 1.2 (Approved Draft 1971, incorporating language from the original version of the standard in the Tentative Draft of 1970) illustrates the standard:
The Commentary refers also to ABA Code DR 5-101(A), which provides:
See also DR 9-101:
Since the record does not show that Mr. Taylor acted "in a judicial capacity" for the SEC in matters relating to this case, the decision in American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966), is inapposite; to the extent United States v. Braniff Airways, Inc., 428 F.Supp. 579 (W.D.Tex.1977), rests on a conflict of advocatory and judicial roles, it too is inapposite. In addition, Braniff was expressly disapproved in In re Perlin, supra, 589 F.2d at 265 n. 5.
The stated purpose of the amendments was to lower the "barrier of secrecy . . . between the facets of the criminal justice system upon which we all depend to enforce the criminal laws." S.Rep.No. 95-354 at 6, reprinted at 1977 U.S.Code Cong. & Admin.News, pp. 527, 530. See Notes of the Advisory Committee on Rules to 1977 amendments to Fed.R.Cr.P. 6(e), reprinted at 18 U.S.C. Rule 6(e) (Supp.1978).