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United States v. Birdman

UNITED STATES COURT OF APPEALS, THIRD CIRCUIT


decided: June 25, 1979.

UNITED STATES OF AMERICA
v.
BIRDMAN, HARVEY, APPELLANT (D.C. CRIM. NO. 77-00382-01); UNITED STATES OF AMERICA V. RICHMAN, WILLIAM, APPELLANT (D.C. CRIM. NOS. 77-00382-04 & 78-00070)

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Before Rosenn, Van Dusen and Garth, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

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.

I.

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 Commission ("SEC"). From 1973 to 1975, he directed the SEC investigation of Delphi Capital Corporation ("Delphi") and of several other companies whose stock was thought to have been manipulated by Delphi. Appellant Birdman was president of one of those companies, Uni-Shield International Corporation, while appellant Richman had had dealings with Uni-Shield stock. Mr. Taylor initiated discussions with the United States Justice Department regarding possible criminal prosecutions of subjects of the SEC investigation, and in May 1975 the Philadelphia Strike Force of the Justice Department asked the SEC to turn over the Delphi investigation file. In June the SEC complied.

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,*fn1 Mr. Taylor appeared before the grand jury with at least some of the trappings of a witness. On August 15, 1977, after being first duly sworn, Mr. Taylor made what the stenographer's transcript characterizes as a "Statement" to the jury: a monologue purporting to summarize various aspects of the investigation of Uni-Shield and to outline the proposed indictment. On September 6, 1977, again after being duly sworn, Mr. Taylor delivered what the stenographer's transcript characterizes as "Testimony," wherein another Strike Force attorney questioned him on the witness stand and he responded. On this occasion Mr. Taylor presented an account of how he had determined or confirmed the dates of the overt acts listed in the indictment.

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 counsel moved for disclosure of all testimony before the grand jury and for dismissal of the indictment. The district court ordered the Government to turn over to defendants all statements or testimony by Mr. Taylor and other SEC employees appearing before the grand jury. After hearings and after considering the statements and testimony by SEC employees, the district court denied the request for full disclosure of all grand jury testimony and denied the motions to dismiss the indictments.

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,*fn2 but in order for deferred prosecution to be granted, that the quality of the information and the quantity of the information given by me would be taken into account."*fn3 In reliance on this promise of consideration for deferred indictment, Mr. Richman asserted, he proceeded to provide certain information to the Government.

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:

"The Court has heard the testimony of Mr. McCullough; has considered the factors which he said he took into consideration. And the Court believes, and so finds, that Mr. McCullough did in fact, in good faith, consider all of the relevant factors known to him in making his decision against recommending deferred prosecution.

"There is no evidence that anyone on behalf of the Government ever misled Mr. Richman to believe that he had a probability of being placed on deferred prosecution. And it is clear from the evidence that any cooperation which he gave in regard to deferred prosecution was only with the hope that the possibility of deferred prosecution would be realized."*fn4

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.*fn5 After hearings on May 10 and May 23, the court denied the joint motions discussed under heading I.A. above on May 23.*fn6 On that date, both defendants switched their pleas to Nolo contendere, conditional upon appeal of the denials of their motions. The district court thereupon conditionally sentenced Mr. Birdman to a year's imprisonment, three years' probation, and a $100,000. fine. It conditionally sentenced Mr. Richman to five years' probation. Defendants filed timely notice of appeal.

This procedure conformed with that approved by this court in United States v. Zudick.*fn7 Although that case involved a guilty plea and this case Nolo pleas, we see no meaningful distinction between the two in this particular respect. Accordingly, we conclude that this court has jurisdiction and that the defendants properly preserved for review the issues here asserted.

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,*fn8 we condemn in principle this practice of serving as both prosecutor and witness. However, since the limited testimony of Mr. Taylor was procedural and not substantive in character (see page 23 below) and was not prejudicial to the defendants, in the circumstances of this case we decline to impose the extreme sanction of dismissal.

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.*fn9 The ABA Code of Professional Responsibility states as an "ethical consideration:"

"The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively."*fn10

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 lawyer has undertaken employment in the litigation, he must withdraw from the role of trial advocate; only in enumerated exceptional circumstances do these requirements not apply, such as where the testimony will relate solely to an uncontested matter or a matter of formality to which no substantial opposing evidence is likely to be offered, or where the lawyer's refusal to serve as advocate would work a substantial hardship on the client because of the lawyer's distinctive value in a particular case.*fn11

The ABA Standards Relating to the Prosecution Function*fn12 make clear that these rules of professional propriety are no less applicable to an attorney for the Government. Section 3.1(f) of the ABA Standards provides:

"The prosecutor should avoid interviewing a prospective witness except in the presence of a third person unless the prosecutor is prepared to forego impeachment of a witness by the prosecutor's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony."

The commentary on this provision emphasizes the profession's rules against an advocate's justifying:

"Use of a third person is virtually the only effective means of impeaching a witness. Assuming a court would permit it, a prosecutor is in a difficult situation if he must seek leave to withdraw and substitute other counsel so that he might take the stand to relate what he claimed the adverse witness had said to him.

"The Code of Professional Responsibility takes a firm position that a lawyer should avoid testifying in court, when he is the advocate. ABA Code DR 5-102."*fn13

The courts have shared the legal profession's disapproval of the double role of advocate-witness.*fn14 In particular, the federal courts have almost universally frowned upon the practice of a Government prosecutor testifying at the trial of the case he is prosecuting, whether for*fn15 or against*fn16 the defendant, and have stated that the practice should be permitted only in extraordinary circumstances or for compelling reasons.*fn17 Where the prosecutor's appearance as witness is unavoidable, the courts have stated that, in general, the prosecutor should withdraw from participation in the trial.*fn18

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:

"It is obvious that the opportunity for tailoring a witness's testimony to the needs of the Government's case is maximized if recourse is permitted to the testimony of an experienced trial attorney who is interested in the successful presentation of that case. Especially in criminal litigation, where so much is at stake for the defendant, must the Bench and Bar demand adherence to a principle that is designed to ensure objectivity in the presentation of evidence."*fn19

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 to the evidence of the prosecuting attorney far greater weight than to that of the ordinary witness."*fn20 A third consideration is that the prosecutor's testifying might "create . . . confusion on the part of the jury as to whether he (is) speaking in his capacity of prosecutor or witness."*fn21 Such confusion, besides disrupting the normal workings of the judicial mechanism, may result in the fact-finder according testimonial credit to the prosecutor's closing arguments.*fn22

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.*fn23 The legal profession's disapprobation of the advocate-witness is thus closely related to the injunction in Canon 9 of the ABA Code of Professional Responsibility that "(a) lawyer should avoid even the appearance of professional impropriety."*fn24 Particularly where the lawyer in question represents the prosecuting arm of the Government, the ethical rule serves to implement the maxim that "justice must satisfy the appearance of justice."*fn25 This function of preserving public trust may be especially necessary in proceedings of the grand jury, which more than a few critics have characterized as a mere tool of prosecutors.*fn26 Even an unarticulated sense among grand jurors or their friends that something was "fishy" about a proceeding where the prosecutor testified will feed cynics' claims.

The foregoing considerations and others*fn27 demonstrate that the general disapprobation of an advocate's testimony is more than an outdated shibboleth disguised as a rule of professional ethics. Furthermore, the justifications cited for the rule are as pertinent to grand jury proceedings as they are to trials before petit juries, where the rule is most often visible. That the rule applies to prosecutors in grand jury proceedings, as well as in criminal trials, is implicit in § 3.5(b) of the ABA Standards Relating to the Prosecution Function, which provides:

"The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury."

The Commentary to § 3.5 amplifies this directive:

"A prosecutor should not, however, take advantage of his role as the ex parte representative of the state before the grand jury to unduly or unfairly influence it in voting upon charges brought before it. In general, he should be guided by the standards governing and defining the proper presentation of the state's case in an adversary trial before a petit jury." (Emphasis added.)

The standards for presenting the state's case to a petit jury*fn28 clearly preclude the prosecutor's testifying, except in the limited circumstances referred to in DR 5-101(B) of the ABA Code (see note 11 above).

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 such conduct requires the legal sanction of dismissing the resulting indictments.

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,*fn29 which appears to impose such a rule. However, to the extent that decision deals with the issues raised in this case, we decline at this time to follow it.

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.*fn30 As this court has noted in the civil context, "the Code (of Professional Responsibility) does not delineate rules of evidence but only sets forth strictures on attorney conduct."*fn31 Thus, it is the settled rule in this Circuit and in most jurisdictions that an attorney is not incompetent as a witness at trial,*fn32 but that admission of such testimony is a matter largely for the discretion of the trial court.*fn33 In the federal courts particularly, the strong judicial reprobation of a prosecutor's testimony at a criminal trial has never hardened into a per se prohibition of the practice:*fn34 prosecutorial testimony alone is not sufficient for reversal, absent additional instances of Government misconduct.*fn35

In light of this established principle that an automatic grant of new trial is not in general an appropriate legal sanction for a prosecutor's testifying at trial,*fn36 a compelling legal mandate is necessary if this court is to impose the analogous sanction of per se dismissal, where an indictment issues from grand jury proceedings in which the prosecutor has taken the witness stand and failed to withdraw. There are three sources for such a mandate mentioned in the federal cases: the Constitution; Rule 6(d) of the Federal Rules of Criminal Procedure, which enumerates persons authorized to be present at grand jury proceedings; and the public policy of assuring fairness in the processes of justice, which underlies the supervisory powers of the federal courts.*fn37

Defendants do not argue, nor do we find, that the prosecutorial conduct here rises to the level of a constitutional violation.*fn38 Thus we need not consider whether a prophylactic rule of dismissal would be justified under the power to make what has been termed a "constitutional common law"*fn39 of remedies for violation of constitutional rights.

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:

"Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer or operator of a recording device may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting."

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."*fn40

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).*fn41 Here the whole ethical dilemma arises not because a person fit none of the listed roles, but because one person allegedly played two of those roles: both "attorney for the government" and "witness under examination." After that person withdrew from the witness stand, as a matter of professional ethics he ought to have withdrawn also from his role as "attorney for the government," to avoid any appearance of professional impropriety. But a professional impropriety does not work a metaphysical dissolution of his actual status as government counsel: the many cases in which trial courts have permitted testifying advocates to continue their participation at trial*fn42 demonstrate that their testimony could not by itself deprive them of legal authority to represent their clients. Nothing in the plain language of Rule 6(d) or in its legislative history indicates that the rule was intended to have such an effect; the Rule's concern is to exclude persons with no authorized roles not to implement the profession's proscriptions against conflicting roles. In sum, reprehensible though it might be for one who has served as a grand jury witness to remain as "attorney for the government," Rule 6(d) does not prevent such conduct as a matter of law.

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.*fn43 This general power of supervision enables the federal courts to establish standards of fair play higher than "those minimal historic safeguards for securing trial by reason which are summarized as "due process of law' and below which we reach what is really trial by force."*fn44 Further, the policy underlying the supervisory power that "(t)he protection of its own functions and the preservation of the purity of its own temple belongs only to the court"*fn45 is in general harmony with the most widely cited rationale for the disapproval of the prosecutor-witness, that the unseemly appearance of the practice tends to undermine public confidence in judicial processes.*fn46

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 public interest by frustrating prosecutions of criminals. The question whether to impose a prophylactic supervisory rule traditionally presents this choice between two evils: on the one hand, the evil "that the Government should play an ignoble part," and on the other "that some criminals should escape."*fn47

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."*fn48 Thus, in United States v. Bruzgo,*fn49 which treated allegations of prosecutorial misconduct more extreme than those in the case before us, this court affirmed the refusal to apply such a sanction. In Bruzgo the defendant claimed that the prosecutors had threatened a grand jury witness, a close associate of the defendant, and had called the witness a "thief" and "a racketeer," allegedly moving the grand jurors to such a passion that they "hissed" the witness. Accepting these allegations as true, and condemning the prosecutor's actions, this court nevertheless concluded that their conduct was not sufficient to invalidate an indictment which was otherwise supported by the evidence.*fn50 This court reached the same conclusion in a similar case, United States v. Riccobene,*fn51 where the prosecutor had told grand jurors that they would not hear from a key Government witness because the proposed defendants were " "connected with organized crime and could harm him.' "*fn52

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.*fn53 While we acknowledge the public interest in avoiding "even the appearance of impropriety" in prosecutors' conduct of federal grand jury proceedings, defendants have not shown that the conduct of which they complain added substantive matters or was anything but an isolated incident unmotivated by sinister ends.*fn54 A later case might require a different result. There has been no showing here that the practice of prosecutorial testimony has become so entrenched and flagrant in this Circuit as to require a prophylactic rule of dismissal.*fn55 Therefore, we decline to stretch the ill-defined contours of the supervisory power to impose such a rule in this case.*fn56

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:

"(A) fair reading of the transcript of August 15, 1977, reveals, and the Court so finds, that he was acting . . . as an attorney; explaining a proposed indictment; identifying the parties named in the indictment; reviewing evidence presented to the Grand Jury which supported the indictment.

"It is clear that he was not then . . . giving material or substantive evidence.

". . . (the September 6 "testimony') was the supplying or explaining to the Grand Jury the indictment which they would be asked to return that same day. There is an explanation as to how the various dates used in the indictment were arrived at.

"The basic structure of the examination was that, starting with each overt act in the conspiracy, to ask Mr. Taylor how the particular date was arrived at.

"Reading the transcript as a whole, it appears to this Court that he was in fact summarizing evidence which the Grand Jury had had presented to it by other witnesses."*fn57

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 focuses 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."*fn58

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;*fn59 here the testimony discloses that it was merely a summary of prior evidence. Furthermore, it was alleged in Treadway that the prosecutor's testimony was inaccurate in several respects.*fn60 Defendants here do not allege that the prosecutor falsified or distorted any substantive facts underlying the indictments to which defendants later pleaded Nolo contendere. We are also satisfied that the testimony was phrased in neutral terms, without possibility for inflammatory effect.

In sum, although Treadway was decided on the basis of a per se rule of dismissal, it is factually distinguishable from this case because here it is possible to ascertain that no actual prejudice to defendants could have resulted from the prosecutor's testimony. For this arguable injury to the grand jury process, it appears at this time that more appropriate remedies exist than a windfall dismissal for unharmed parties.*fn61

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.*fn62 To support their argument, defendants rely primarily on a decision by a panel of the United States Court of Appeals for the Sixth Circuit, In Re April 1977 Grand Jury Subpoenas (General Motors Corp.), 573 F.2d 936 (6th Cir. 1978), Appeal dismissed en banc, 584 F.2d 1366 (1978), Cert. denied, 440 U.S. 934, 99 S. Ct. 1277, 59 L. Ed. 2d 492 (1979). We find their argument unpersuasive.

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 participation as a Special Assistant United States Attorney in grand jury proceedings; it thus affirmed a contempt judgment against a recalcitrant witness who claimed that the CFTC attorney's participation had tainted the proceedings. Similarly, in United States v. Dondich, 460 F. Supp. 849 (N.D.Cal.1978), the district court refused to dismiss an indictment on account of a specially authorized SEC lawyer's participation in the grand jury proceedings from which the indictment issued.

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*fn63 intended to address:

"(Although) the prosecutor should not be a professional associate of defense counsel, there is no conflict or appearance of conflict in his being professionally associated with other lawyers interested in the prosecution. The prosecutor of course is himself interested in the prosecution, but that is not the sort of interest that creates a conflict."*fn64

Further, both courts noted*fn65 that the position which defendants herein urge would frustrate the congressional policy of fostering intragovernmental cooperation in criminal prosecutions. This policy is implemented in 28 U.S.C. § 515(a)*fn66 and in the recent amendments to F.R.Crim.P. 6(e).*fn67 The Supreme Court has recently noted the importance of such intragovernmental cooperation in United States v. LaSalle National Bank, 437 U.S. 298, 312-13, 98 S. Ct. 2357, 57 L. Ed. 2d 221 (1978).

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 of the factors. On these facts, the court of appeals vacated the sentence and ordered specific performance of the Government's implied promise, requiring that the prosecution set forth its evaluation of each specific mitigating factor in the record at the time of resentencing. 585 F.2d at 855.

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."*fn68 That finding is not "clearly erroneous."*fn69 Therefore, Mr. Richman's argument must fail.

VI. DISPOSITION

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.


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