Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
135838776
label
JGR/Organized Crime (4 of 5)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
135838776
contentType
document
title
JGR/Organized Crime (4 of 5)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
135838776
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
1aaeb40ecbc0d8fb
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Organized Crime
(4 of 5)
Box: 35
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
IN THE UNITED STATES COURT OF APPEALS
PUBLISH
FOR THE ELEVENTH CIRCUIT
No. 85-5232
IN RE: APPLICATION OF THE PRESIDENT'S
COMMISSION ON ORGANIZED CRIME
Subpoena of LORENZO SCADUTO,
Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(May 29, 1985)
Before RONEY, FAY and JOHNSON, Circuit Judges.
FAY and JOHNSON, Circuit Judges:
This appeal raises a number of important questions
regarding the composition and powers of the President's
Commission on Organized Crime (the "Commission"). It arises from
an order of the United .States District Court for the Southern
District of Florida, holding appellant Scaduto in contempt for
his failure to testify before the Commission. On appeal, Scaduto
raises the following issues: 1) whether the appointment of two
Article III judges and two members of Congress to the Commission
violated the separation of powers doctrine; 2) whether appellant
validly invoked his Fifth Amendment privilege against
self-incrimination as a consequence of a reasonable fear of
foreign prosecution; 3) whether the immunity conferred upon
appellant was invalid because of its approval by an Acting
Assistant Attorney General in place of the Attorney General; 4)
whether the application for a writ of habeas corpus ad
testificandum by an Assistant United States Attorney instead of
the Attorney General violated P.L. 98-368, Section 3; 5) whether
the district court erred in holding the civil contempt statute,
28 U.S.C.A. S 1826, applicable to the instant proceeding.
I. BACKGROUND
On July 28, 1983, President Reagan issued Executive Order 12435,
Page 1
which established the Commission, in accordance with the provisions of
the Federal Advisory Committee Act ("FACA"), as amended, 5 U.S.C.A. app.
2, Sections 1-15. Section 2(a) of Executive Order 12435 directed the
Commission to:
make a full and complete national and region-by-region
analysis of organized crime; define the nature of
traditional organized crime as well as emerging organized
crime groups, the sources and amounts of organized crime's
income, and the uses to which organized crime puts its
income; develop indepth information on the participants in
organized crime networks;
...
evaluate Federal laws
pertinent to the effort to combat organized crime[;]
advise the President and the Attorney General with respect
to findings and actions which can be undertaken to improve
law enforcement efforts directed against organized crime[;]
and make recommendations concerning appropriate
administrative and legislative improvements and
improvements in the administration of justice.
Exec. Order 12435, Section 2(a), 48 Fed. Reg. 34,723 (1983).
The Commission is composed of nineteen members, including the
Honorable Irving R. Kaufman, a Judge of the United States Court of
Appeals for the Second Circuit; the Honorable Potter Stewart, a retired
Associate Justice of the United States Supreme Court; the Honorable
Strom Thurmond, a member of the United States Senate; the Honorable
Peter Rodino, Jr., a member of the United States House of
Representatives; and other persons with broad experience in law
Page 2
enforcement and criminal justice. Pursuant to section 1(b) of Executive
Order 12435, which directs that "[t]he President shall designate a
Chairman from among the members of the Commission," President Reagan
designated Judge Kaufman as Chairman.
To enable the Commission to fulfill its responsibilities under
Executive Order 12435, Congress passed Pub. Law No. 98-368, 98 Stat. 490
(1984), which conferred a variety of powers in aid of the Commission's
mandate to investigate and report on organized crime. Under Public Law
98-368, the Commission may hold public hearings; issue subpoenas
requiring attendance and testimony of witnesses and the production of
information; seek writs of habeas corpus ad testificandum and
enforcement of its subpoenas, "upon application by the Attorney
General," in federal courts; issue orders compelling testimony under the
federal immunity statute, 18 U.S.C.A. Sections 6001-05; obtain access to
and use information obtained pursuant to Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 ("Title III"), as amended, 18
U.S.C.A. Sections 2510-20; and obtain other types of information through
measures consistent with the terms of Executive Order 12435. P.L. 98-
368, Sections 1-4, 6(b), 98 Stat. 490, 490-93 (1984).
On February 5, 1985, the Commission issued a subpoena for appellant
Scaduto, a federal prisoner confined at the United States Ponitentiary
at Terre Haute, Indiana. Scaduto is currently serving a sixtv-four year
term of imprisonment imposed on November 21, 1984, in the United States
District Court for the Eastern District of New York, following his
conviction for various violations of the Drug Act. The appeal of his
conviction is now pending in the United States Court of Appeals for the
Page 3
Second Circuit; oral argument of Scaduto's appeal was heard on March 25, 1985.
Judge Kaufman did not serve on the panel which heard Scaduto's appeal. However,
the appeal is presently under submission to the court upon which Judge Kaufman
serves as an active circuit judge.
In response to a petition by the Commission through the United
States Attorney for the Southern District of Florida, to secure
Scaduto's presence at public hearings before the Commission on February
20-21, 1985, in Miami, United States District Judge Joe Eaton issued a
writ of habeas corpus ad testificandum.
On February 19, 1985, appellant filed a motion to quash the
subpoena and writ of habeas corpus ad testificandum, and a complaint for
declaratory and injunctive relief, in the Southern District of Florida.
The complaint challenged, inter alia, the constitutionality of the
Commission under the separation of powers doctrine, and the authority of
the Commission to compel appellant's testimony in light of his alleged
fear of foreign prosecution in Italy.
On February 20, 1985, United States District Judge William M.
Hoeveler denied Scaduto's motions and ordered him to testify before the
Commission in camera or at a private deposition. Judge Hoeveler further
ordered that the transcript of appellant's testimony be sealed, and that
no one other than the parties have access to it. The court's order
specifically prohibited disclosure, either direct or indirect, to any
foreign sovereign, including the Italian government. In conformity with
that order, counsel for the Commission conducted a deposition, at which
appellant was served with an authorized compulsion order, issued
pursuant to P.L. 98-368 and 18 U.S.C.A. Sections 6001-05. Scaduto
nonetheless continued, through his counsel, to assert a Fifth Amendment
Page 4
privilege.
On the evening of February 20, 1985, the Commission moved to compel
appellant's testimony. Early on the morning of February 21, 1985, a
hearing was held on that motion before Judge Hoeveler. At that hearing,
Judge Hoeveler signed an order compelling Scaduto to testify, under the
same conditions earlier specified. At Judge Hoeveler's direction,
counsel for the Commission immediately conducted a second deposition of
Scaduto in conformity with the court's order. In that deposition,
appellant persisted in refusing to answer the Commission's questions,
again asserting a privilige against self-incrimination, notwithstanding
the judicial and Commission orders issued in connection with the
deposition.
After his refusal to testify, appellant was again brought before
Judge Hoeveler. Upon review of the record and upon the Commission's
motion, Judge Hoeveler orally held Scaduto in contempt, pursuant to 28
U.S.C.A. $1826. On February 22, 1985, Judge Hoeveler issued a written
order of commitment under 28 U.S.C.A.$1826.
II. ISSUES AND DISCUSSION
A. Separation of Powers
Appellant argues first that the composition of the Commission, which
includes two United States Congressmen and two Article III Federal Judges,
violates the constitutionally required separation of powers, and renders
all action by the Commission void. He contends that the performance by
members of the legislature and the judiciary of those executive "law
enforcement" activities authorized by P.L. 98-368, which include subpoenaing
Page 5
witnesses and reviewing information intercepted by electronic
1
surveillance, violates the separation of powers.
The tripartite structure established by the Constitution reflects
the conferral of separate and distinct powers on the President, the
Congress and the Judiciary. The framers of our Constitution embraced
"Montesquieu's view that the maintenance of independence as between the
legislative, the executive and the judicial branches," was essential to
the preservation of liberty. Myers V. United States, 272 U.S. 52, 116
(1926). Thus the departments of government were organized on the
principle that "[t accumulation of all powers legislative, executive
and judiciary in the same hands, whether of one, a few or many, and
whether hereditary, self-appointed, or elective, may justly be
pronounced the very definition of tyranny." Immigration and
Naturalization Service V. Chadha, 462 U.S. 919, (1983) (Powell, J.,
concurring in judgment) (quoting The Federalist No. 47, at 324 (J.
Madison) (J. Cook ed. 1961)).
This understanding of the separation of powers doctrine has not,
however, required that the three departments of government remain
absolutely independent or "hermetically sealed" from one another. Nixon
V. Administrator of General Services, 433 U.S. 425 (1977); United States
V. Nixon, 418 U.S. 683 (1974). Indeed, the appearance of administrative
agencies which combine functions characteristically associated with two
or more of the departments of government demonstrates the potential for
legitimate interaction or interdependence among the powers of
government. See Buckley V. Valeo, 424 U.S. 1, 280-81 (1976) (opinion of
White, J.); Humphrey's Executor V. United States, 295 U.S. 602, 628-30
Page 6
(1935). What the separation of powers has been construed to prohibit is
those arrogations of power to one branch of government which "disrupt[]
the proper balance between the coordinate branches," Nixon V.
Administrator of General Services, 433 U.S. at 443, or "prevent[ [one
of the branches] from accomplishing its constitutionally assigned
functions," id. (citing United States V. Nixon, 418 U.S. at 711-12). A
minority view of the doctrine has also reflected the more structural,
Madisonian concern that one branch should not be permitted to share in
the most substantial powers of another. See Reid V. Covert, 354 U.S. 1
(1957) (act giving President power to alter substantive law violates
separation of powers).
Few cases have considered the extent to which members of the
judicial or legislative branches may exercise powers traditionally
associated with another branch. Two early cases, Heyburn's Case, 2 U.S.
(2 Dal.) 408 (1792), and United States V. Ferreira, 54 U.S. (13 How.) 43
(1852), addressed the question of whether courts could exercise powers
which were non-judicial in nature. Heyburn's Case concerned a statute
which vested in the courts of appeals the power to settle pension claims
of widows, orphans and invalids, subject to revision by the Secretary of
War and the Congress. The law was amended before judgment, rendering
the issue moot, but the Court included in its opinion the opinions of
three circuit courts which had protested the act or refused to
adjudicate claims under it. In these opinions, jurists such as Jay and
Iredell concluded that the act violated the separation of powers by
requiring of judicial officers the performance of a task which formed no
part of the courts' Article III powers, and by subjecting judgments
Page 7
rendered by members of the judicial branch to revision by officials of
the legislative or executive branch. In United States v. Ferreira, the
Court addressed an appeal under 8 statute which directed the United
States District Court for the Northern District of Florida to adjudicate
injury claims arising from United States action against Spanish officers
and inhabitants of Florida, subject to approval or revision by the
Secretary of the Treasury. Citing Heyburn's Case in support of the fact
that the task imposed by the statute was not of a judicial nature, the
Court dismissed the appeal for lack of jurisdiction. It expressed no
opinion, however, as to whether the act violated the separation of
2
powers.
Hobson v. Hansen, 265 F.Supp. 902 (D.D.C. 1967) (three judge court),
examined a question more directly related to the instant case: the
extent to which judges, acting as individuals rather than as members of
a court, may undertake the performance of non-judicial duties. Hobson
involved a challenge to a D.C. statute requiring that members of the
Board of Education be appointed by United States District Court judges
for the District of Columbia. The court upheld the constitutionality of
the provision on the basis of two provisions inapplicable to the instant
case, 3 but it also undertook a general examination of federal judicial
power to perform non-judicial duties which is instructive. The majority
was unable to identify a categorical prohibition, analogous to the "case
and controversy" requirement, on the official engagement of federal
judges in non-judicial duties. 4 The court stressed, however, that
absence of any categorical constraint on individual judges, should not be
understood to imply that they are free to pursue whatever non-judicial
Page 8
activities they wish. Judges are constrained by the limitations of
propriety, by the requirement that their non-judicial duties not have
"such incongruity" with the judicial function as would void the judicial
power which had been conferred, see Ex Parte Siebold, 100 U.S. 371
(1879), and by the "guarantees of personal liberty" which are confered
upon citizens and potential litigants. 265 F.Supp. at 915. These
limitations derive both from Article III and from the Fifth and
Fourteenth Amendments to the Constitution.
While they are in some respects factually distinct from the instant
case, these cases offer strong support for the proposition that
conferring non-judicial functions on members of the judiciary may raise
separation of powers problems. Hobson demonstrates, more importantly,
that the way to resolve the question in the individual case is to apply
a functional standard similar to that propounded in Nixon V.
Administrator of General Service, supra: does the imposition of powers
traditionally associated with one branch of government on officials of
another branch interfere with their ability to perform their
constitutionally-required duties in the branch of which they are a part?
Under this functional standard, it appears that the imposition of the
Commission's investigatory powers on members of Congress does not
interfere with their ability to perform their constitutionally required
duties. 5 If their investigatory activities cause them to believe that
the government is losing its "war" on organized crime, or to take a
negative view of the methods being used by law enforcement officials
combat it, this would not appear to interfere with their ability to
perform as legislators: their office does not require them to approach
Page 9
such subjects with impartiality. Moreover, while such investigatory
powers are essentially executive in character, they are not beyond the
congressional purview; many congressional committees are given
investigatory powers to aid them in advisory tasks, see Senate Select
Committee on Presidential Campaign Activities V. Nixon, 498 F.2d 725
(D.C. Cir. 1974) (Senate Committee granted subpoena power for purposes
of investigation) and this has not been construed to threaten their
6
ability to perform as legislators.
A different conclusion must be reached with respect to those
members who are also federal judges. Impartiality is one of the
central, constitutionally-ordained, requirements of the federal judicial
office, see United States V. Will, 449 U.S. 200 (1980), and this
impartiality is threatened by many of the activities of the Commission.
A judge who is charged with assisting and improving enforcement efforts
against orgainized crime must adopt a pro-government perspective which
is ill-suited to his obligation to be neutral in the courtroom. The
kind of information he might uncover through the investigatory
activities of the Commission would further endanger his impartiality.
If the data and testimony surveyed by the Commission were to
demonstrate, for example, that the magnitude of the threat posed by
organized crime was greater than had previously been suspected, that a
substantial amount of organized crime activity was never prosecuted, or
that law enforcement officials in many parts of the country employed
methods which were poorly chosen, subject to abuse or inadequate to
combat the problem, such discoveries could affect the way the judge
approached those organized crime suspects and law enforcement officials
Page 10
in cases who appeared before him. Moreover, even if a judge
could satisfy himself that he could separate his participation on
the Commission from his judicial functions, it is not clear that
litigants could sustain equal faith in his impartiality. As
Judge Wright observed in Hobson V. Hobson, supra:
The need to preserve judicial integrity is more than
just a matter of judges satisfying themselves that the
environment in which they work is sufficiently free of
interference to enable them to administer the law
honorably and efficiently. Litigants and our citizenry
in general must also be satisfied.
265 F. Supp. at 931 (Wright, J., dissenting). These problems
would seem to bear particularly on the participation of Judge
Kaufman, who is both the Chairman of the Commission and an active
judge in a jurisdiction which has a well-publicized problem with
organized crime, but the attitudinal hazards which Commission
membership presents apply to Justice Stewart as well. Under the
functional test propounded in the Nixon cases, the conferral of
such powers on federal judges violates the separation of powers.
Page 11
B. Fifth Amendment Privilege and the Danger of
Foreign Prosecution
Scaduto argues next that he was justified in asserting his
Fifth Amendment privilege because the domestic immunity which had
been conferred upon him was insufficient to protect him from
foreign prosecution. On September 14, 1984, an Italian magis-
trate and policeman came to the United States to interrogate
Scaduto. At the time of the interrogation, which took place at
the office of the United States Attorney for the Eastern District
of New York, the magistrate presented Scaduto with a series of
drug trafficking charges and informed him that there was an
outstanding warrant for his arrest in Italy. The issuance of
such a warrant is the first step in the commencement of extra-
dition proceedings by the Italian government. At the September
1984 meeting with the Italian officials, Scaduto stated that his
appeal was pending in the United States and exercised his right
to remain silent. On January 26, 1985, the State Department
formally denied an extradition request by the Italian government.
Page 12
In Zicarelli V. New Jersey State Commission of Investigation, 406
U.S. 472 (1972), the Court declined to resolve a similar claim, but held
that a claimant asserting that 8 Fifth Amendment privilege is necessary.
to protect him from the threat of foreign prosecution must demonstrate
first, that the information that would be disclosed through his
testimony might incriminate him under foreign law, and second, that his
fear of foreign prosecution is "real and substantial" rather than merely
speculative. 406 U.S. 478-80. Courts of appeals, including the former
Fifth Circuit, have followed these standards in evaluating similar
claims. See United States V. Brummitt, 665 F.2d 521 (5th Cir. 1981),
cert. denied, 456 U.S. 977 (1982); In Re Tierney, 465 F.2d 806 (5th Cir.
1972), cert. denied, 410 U.S. 914 (1973); In Re Flanagan, 691 F.2d 116
(2d Cir. 1982). The courts have identified a number of factors which
bear upon the second prong of the Zicharelli test, which include:
whether there is an existing or potential foreign prosecution of the
claimant; whether any of the charges would entitle the foreign
jurisdiction to have him extradited; and whether there is a likelihood
that his testimony would be disclosed to a foreign government.
Zicarelli V. New Jersey State Commission of Investigation, supra; In Re
Flanagan, supra, 691 at 121.
Neither party disputes the fact that the testimony sought by the
Commission would be relevant to a foreign prosecution. Several of the
questions posed by the Commission at Scaduto's depositions concerned his
involvement in drug traffic between the United States and Italy, which
involvement would surely have been of interest to Italian authorities.
Page 13
The issue which the parties contest is whether there was a "real and
substantial danger" of an Italian prosecution, under the standards set
forth above.
The Commission argues that despite the fact that charges have been
filed by the Italian government, extradition is currently impossible
under Article 6 of the Extradition Treaty which states that
Extradition shall not be granted when the person sought has been
convicted, acquitted or pardoned, or has served the sentence
imposed, by the requested party for the acts for which extradition
is requested
and notes that an extradition request has already been denied by the
State Department. The Commission also claims that there is virtually no
likelihood that Scaduto's testimony would become available to foreign
authorities, because the court's order required Scaduto's testimony to
be given in the form of a deposition taken by a single Commission
attorney, and imposed an absolute bar on any form of disclosure.
Scaduto argues that if his conviction were reversed on the appeal
currently pending before the Second Circuit, and retrial was not sought,
he could again be subject to extradition. He argues that it is also
possible that the Italian authorities could try him in absentia.
Scaduto further claims that some courts have found secrecy orders
insufficient to assure that testimony will not become available to a
foreign sovereign. See In Re Flanagan, supra, 691 F.2d at 123 (Rule
6(e) of F.R.Crim.P. not adequate to assure nondisclosure of testimony).
The Commission's argument has greater support on all points. While
it is possible that Scaduto's conviction will be reversed, and retrial
Page 14
will not be sought, and the Italian authorities will seek extradition,
and U.S. authorities will comply, such a danger appears to be of
precisely that speculative variety that the Court found insufficient to
support the assertion of a privilige in Zicarelli. And Scaduto presents
no evidence to suggest that he will, in fact, be tried in absentia, or
that such a trial will have any consequences whatsoever for him if he is
not subject to extradition. As to the sufficiency of the court's
secrecy order, the former Fifth Circuit has found Rule 6(e) fully
adequate to prevent the likelihood of disclosure to a foreign sovereign.
See United States V. Brummitt, supra, 665 F.2d at 526; In Re Tierney,
465 F.2d at 811-12. By analogy, it would appear that the order given by
the court is sufficient to eliminate the danger of such disclosure,
particularly as the officers of the court who would be involved in the
taking of Scaduto's deposition would be less likely to "leak"
information in the manner feared by the Flanagan court than members of a
grand jury. The district court did not err in finding that there was
insufficient danger of a foreign prosecution to justify the assertion of
the privilige.
C. Failure of Attorney General to Approve the Application for
Immunity
The immunity order presented by the Commission prior to the taking
of Scaduto's first deposition was not approved by the Attorney General
but by an Acting Assistant Attorney General of the Criminal Division.
Scaduto argues that this delegation was improper because 18 U.S.C.A.
6004(a) (proceedings before administrative bodies), provides only for
the approval of applications for immunity by the Attorney General. He
Page 15
claims that because the immunity granted was therefore invalid, he was
justified in invoking the Fifth Amendment privilege.
The Commission argues the fact that Section 6004 has no explicit
language permitting delegation (while Section 6003 (proceedings before a
court or grand jury) explicitly permits delegation to the Deputy
Attorney General or any designated Assistant Attorney General) does not
demonstrate that such delegation is prohibited. It argues that this
general language permits the Attorney General to make whatever
delegation he deems appropriate, under the broad power conferred on him
by 28 U.S.C.A. 510 (delegation of authority). The Commission argues
further that two delegation orders promulgated under this statutory
authority render the delegation in the instant case valid: 28 C.F.R.
0.175(c), which provides that Assistant Attorneys General are
authorized to exercise the authority vested in the Attorney General
by Section 6004 to approve the issuance by an agency of the United
States of an order compelling testimony by a witness in a proceeding
before the agency when the subject matter of the proceedingis within
the cognizance of their respective divisions provided however,
that no approval shall be granted unless the Criminal Division
indicated that it has no objection to the proposed grant of immunity
and 28 C.F.R. 0.178(a), which provides that Assistant Attorneys General
may redelegate their authority under 28 C.F.R. 0.175 to their respective
Deputy Assistant Attorneys General during times when they are absent.
Although there appears to be no binding precedent on this point,
several well-reasoned opinions have employed analysis virtually
identical to that advanced by the Commission. In Federal Trade
Page 16
Commission V. Foucha, 356 F.Supp. 21 (N.D. Ala. 1973), the court found
the language of Section 6004 indicative of Congressional intent to
permit delegation at the discretion of the Attorney General, pursuant to
28 U.S.C.A. 510. As the Attorney General had exercised this authority
by enacting 28 C.F.R. 0.175 and 0.178, the court applied these orders to
uphold the delegation (to an Assistant Attorney General of the Antitrust
Division) in that case. The court also held that where a violation of
such regulations is alleged, the claimant must demonstrate prejudice in
order to invalidate action taken pursuant to them. 356 F.Supp. at 25.
See also In Re Horn, 458 F.2d 468 (3rd Cir. 1972) (applying analysis to
similar language in Section 2514); December 1968 Grand Jury V. United
States, 420 F.2d 1201 (7th Cir.), cert. denied, 397 U.S. 1021 (1970)
(applying similar analysis to Section 6004). Thus it seems clear that
the delegation in the instant case was consistent with the regulatory
scheme of which Section 6004 is a part. Moreover, even if a departure
from the terms of the applicable regulations could be shown, Scaduto has
demonstrated no prejudice arising from it, see Foucha, supra 356 F.Supp.
at 25; Pacific Molasses Co. V. Federal Trade Commission, 356 F.2d 386
(5th Cir. 1966). The district court did not err in finding the grant of
immunity valid.
D. Failure of Attorney General to Make Application for Habeas
Corpus Ad Testificandum
Scaduto argues next that the writ of habeas corpus ad testificandum
should be quashed, and the contempt order vacated, because the
application for the writ by an Assistant United States Attorney rather
than the Attorney General violates the terms of P.L. 98-368, Section 3.
Page 17
This section provides that
A court of the United States within the jurisdiction in which
testimony of a person held in custody is sought by the
Commission may, upon application by the Attorney General, issue a
writ of habeas corpus ad testificandum requiring the custodian to
produce such person before the Commission or before a member of the
Commission
The Commission argues that 28 U.S.C.A. 510 confers on the Attorney
General broad power to delegate his authority, and that absent clear
statutory language or history demonstrating an intent to supercede that
section, such authority to delegate should be respected.
The case law, once again, supports the Commission's position.
Section 510 is presumed to control delegation by the Attorney General,
unless the statutory provision in question explicitly supercedes it, see
United States V. Cuomo, 525 F.2d 1285 (5th Cir. 1976); United States V.
Giordano, 416 U.S. 505 (1974). The language of the provision in no way
suggests that it was intended to supercede or narrow the power conferred
in Section 510, compare with United States V. Giordano, supra (language
of Section 2516 explicitly narrows Attorney General's power of
delegation), and the pertinent legislative history reflects an attitude
of deference toward Section 510. Under regulations promulgated pursuant
to 28 U.S.C.A. 510, the Attorney General may delegate his power to
Assistant and Deputy Assistant Attorneys General, who may then delegate
it to United States Attorneys, who may in turn delegate it to Assistant
United States Attorneys, see 28 C.F.R. 0.57; 28 U.S.C.A. 542; United
States V. Cuomo, supra; United States V. Smyth, 104 F.Supp. 283 (D.C.
Page 18
FAY, Circuit Judge, writing separately:
III. Severability
Having concluded that the membership of the Article III
judges on the Commission is improper, we must determine whether
or not past actions by the Commission are void. There is no
clear authority controlling this question. It seems to me that
an appropriate analogy would be the approach taken in regard to
statutes under review. Courts should refrain from invalidating
more of a statute than is necessary. Regan V. Time, Inc., 104 S.
Ct. 3262, 3269 (1984). If the unconstitutional portion of a
statute can be severed, the remaining portion should be upheld.
The Commission operates with the assistance of a staff.
Its attorneys have appeared in this very matter. Hearings have
been conducted throughout the country. It is assumed that much
testimony has been obtained. Numerous subpoenas have probably
been issued. The Commission is comprised of nineteen members.
Although Judge Kaufman serves as the chairman, nothing in the
record indicates that he personally or single-handedly makes
decisions concerning the issuance of witness subpoenas or other
writs of assistance. There is nothing about the presence of
either Justice Stewart or Judge Kaufman which would infect or
compromise in any way the work of the Commission. These judges
may have disqualification problems in the future but such issues
are not before us and can undoubtedly be handled with ease.
Page 20
Alternatively, it seems to me the approach taken by the
Supreme Court in Buckley V. Valeo, 96 S. Ct. 612 (1976), would
also be appropriate. One of the issues in that matter dealt with
the appointing process for members of the Federal Election
Commission. The Court concluded:
It is also our, view that the Commission's inabil-
ity to exercise certain powers because of the method by
which its members have been selected should not affect
the validity of the Commission's administrative actions
and determinations to this date, including its admini-
stration of those provisions, upheld today, authorizing
the public financing of federal elections. The past
acts of the Commission are therefore accorded de facto
validity, just as we have recognized should be the case
with respect to legislative acts performed by legisla-
tors held to have been elected in accordance with an
unconstitutional apportionment plan.
Id. at 693.
In my opinion, our holding regarding the separation of
powers doctrine does not require the voiding of Commission
action. The subpoena issued to the appellant is valid and the
contempt order due to be affirmed.
Page 21
Notes
1. Appellant also suggests that the President lacks power to
appoint federal judges and legislators to an executive advisory
commission. This claim has little merit. Those cases dealing with the
appointments (or removal) power, which are considered to be a subset of
the separation of powers cases, have addressed two types of problems:
1) whether a member of one branch (usually the President) has the power
to appoint (or remove) an official whose duties partake of the powers of
a branch of which the appointing official is not a member, see
Humphrey's Executor V. United States, supra, and 2) whether members of
one branch who have already appointed an official may add to his
responsibilities duties partaking of the power of another branch, see
Springer v. Government of Phillipine Islands, 277 U.S. 189 (1928) (under
Phillipine analogue of U.S. Constitution, legislature may not accord
executive duties to legislative appointees without violating executive
appointments power). As is readily apparent, neither of these fact
patterns is present in the instant case. That the powers of the
Commission are substantially executive is the very point which is being
advanced by Scaduto in the second part of his argument; thus there
appears to be no problem with officials who are to exercise such powers
being appointed by the President. And that the legislature confers
executive powers on the Commission through P.L. 93-368 presents no
problem under cases such as Springer, as it was the President, rather
than the legislature, who appointed the commissioners in the first
place.
2. In Chandler V. Judicial Council for the Tenth Circuit, 398 U.S. 74
(1970), the Court had a similar opportunity to determine whether Council
action was judicial action. While the Court suggested that Council
action was not judicial action, 398 U.S. at 88 n. 10, the Court declined
to resolve the matter as it found that the petitioner had not exhausted
his administrative remedies and was not entitled to extrordinary relief.
Once again, the separation of powers issue was not addressed.
3. The Hobson court relied on Article I, Section 8, cl. 17, which
permits Congress to confer on the federal courts of the District of
Columbia powers beyond those described in Article III, and Article II,
Section 2, cl. 2, which permits Congress to vest in the Courts of Law
the power of appoint "inferior Officers" of the United States.
4. This point is aptly illustrated by the actions of John Jay as Chief
Justice of the Supreme Court. While Jay declined to give advisory
opinions to President Washington, he saw no constitutional bar to his
service as American negotiator with England of the treaty that bears his
name. See Hobson V. Hansen, supra, 265 Supp. at 915.
5. One constitutional provision which might appear at first glance to
bear upon the power of congressmen to undertake executive functions is
the "incompatibility clause," Article I, Section 6, cl. 2, which
1
prohibits members of Congress from holding certain federal offices
during their elected terms. Cf. Signorelli V. Evans, 637 F.2d 853 (2d
Cir. 1980) (New York analogue of incompatibility clause requiring state
judges to resign before running for congressional office
constitutional). But the language of this provision, "No Senator or
Representative shall be appointed to any civil Office under the
Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been increased during such time "
suggests that it applies to appointments for which congressmen receive
pay. Members of the Commission receive no pay for their work.
Executive Order 12435, Section 3(b).
6. While it is not the case that the Article III duties of federal
judges include investigatory activities of the kind which may be
undertaken by the Commission, judges have served on presidential
advisory committees which have enjoyed similar powers. The Warren
Commission on the Assasination of President Kennedy, which was headed by
Chief Justice Earl Warren, for example, was empowered to subpoena
witnesses and seek judicial enforcement of its subpoenas. There
appears, however, to have been no previous challenge to the composition
and powers of an executive advisory committee on separation of powers
grounds.
2
RONEY, Circuit Judge, special concurrence:
I concur with Judge Fay's decision to affirm the district
court's enforcement of the subpoena here in question. Although
I agree that even if the Commission on Organized Crime is
unconstitutionally constituted, its actions can be given de
facto validity and the subpoena enforced, I disagree with the
decision of Judges Fay and Johnson on the constitutional issue.
In my judgment, the President's Commission on Organized Crime is
not unconstitutionally constituted. The facts, legal
proceedings and issues presented to this Court are carefully set
out in the opinion of Judges Fay and Johnson, and need not be
repeated here. Because I agree with their decision on the other
arguments made by appellant to defeat the enforcement of this
subpoena, I need only discuss the constitutionality of the
Commission under the separation of powers concept.
The separation of powers doctrine, implicit in our
tripartite form of Government, is not explicitly articulated in
the Constitution. Nor are there any judicial decisions which
have comprehensively dealt with the doctrine in the context here
presented. Thus there are no well-defined principles to guide
this separation of powers challenge.
The most that can be cited for authority is the
discussion of the principles involved, only some of which is in
judicial opinions. The great majority of that discussion,
however, would clearly indicate the separation of powers
principle does not inhibit Article III judges from undertaking
nonjudicial governmental functions, even though that activity
might well disqualify them from performing certain judicial
duties.
Since the beginning of the Republic to modern times,
Article III judges of stature have sometimes served the country
in executive positions. John Jay served simultaneously as
Chief Justice and as Ambassador to England. Oliver Ellsworth
similarly served as Chief Justice and Minister to France. For a
brief period in 1801, John Marshall served as Chief Justice and
Secretary of State. Justice Roberts chaired the Commission
investigating the Pearl Harbor disaster. Justice Jackson was
Chief Counsel for the United States in the Nuremberg prosecution
of Nazi war criminals.
Chief Justice Warren headed the
Commission appointed by the President to investigate President
Kennedy's assassination. Slonim, Extrajudicial Activities and
the Principle of the Separation of Powers, 47 Conn. B.J. 391
(1975). Since none of these assignments were challenged in
court on constitutional grounds, no controlling precedent flows
from them.
2
A specific proposal to prevent judges from performing
extrajudicial activities was considered, however, and rejected
at the Constitutional Convention. Charles Pinckney, a delegate
from South Carolina, introduced a specific proposal barring
"Judge[s] of the Supreme Court" from holding outside offices.
His proposal was referred to the Commission of Detail and
nothing more was heard of it. Slonim, 49 Conn. B.J. at 401.
Indeed, several statutes passed by Congress provide that
the Chief Justice or other Article III judges serve governmental
entities in a nonjudicial capacity. See, e.g., 20 U.S.C.A. $ 42
(Chief Justice member of Board of Regents of Smithsonian
Institution) 20 U.S.C.A. $ 72 (Chief Justice a Trustee of the
National Gallery of Art) 20 U.S.C.A. $ 76cc (b) (Chief Justice a
Trustee of the Joseph H. Hirshhorn Museum and Sculpture Garden) i
44 U.S.C.A. $ 2501 (Chief Justice appoints member of judiciary
to National Historical Publications Commission).
In the only modern case to consider the problem of
federal judges performing nonjudicial tasks the court said:
There is no constitutional principle that federal
judges may not engage officially in nonjudicial
duties. There is the constitutional principle
that Article III courts may not engage in
adjudicatory or decisional functions except in
those "cases" and "controversies" referred to in
Article III. The first Chief Justice of the
United States illustrated the distinction. He led
the Court in declining to give advisory opinions
to President Washington; but a few years later
when still Chief Justice he saw no constitutional
objection to becoming the American negotiator with
England of the important Jay treaty which bears
his name. This was not without controversy,
albeit in good part politically motivated. The
3
Jay experience is mentioned simply as an
outstanding illustration of the difference between
functions which may not be required of Article III
courts or their judges and functions of a
nonjudicial character which are not barred by the
Constitution.
Hobson V. Hansen, 265 F. .Supp. 902, 915 (D.D.C. 1967) (three
judge court).
The two most often cited cases in any discussion of
separation of powers are Hayburn's Case, 2 U.S. (2 Dal.) 408
(1792), and United States V. Ferreira, 54 U.S. (13 How.) 39
(1852). Hayburn's Case involved the 1792 Pensions Act which
gave the courts of appeals authority to rule on the pension
claims of disabled veterans, but subject to review by the
Secretary of War. Congress amended the Act prior to judgment,
rendering it moot, so the Supreme Court never ruled on the
Act's constitutionality. But the reporter of the case included
in a footnote the three circuit court opinions which found the
Act unconstitutional.
The holdings in those opinions were that the separation
of powers principle was violated by Congress' assigning to the
"Court" nonjudicial functions. They disagreed on whether the
judges could have performed the Pension Act duties as
individual Commissioners. The members of the New York district
thought they could, while those from North Carolina thought they
could not. 2 U.S. at 411-12.
Chief Justice Taney alluded to this point in the course
of deciding United States V. Ferreira. Ferreira dealt with a
4
statute directing the district judge of the Northern District of
Florida to examine the claims of Spanish citizens arising out of
the 1819 peace treaty between the United States and Spain,
subject to review by the Secretary of the Treasury. The Court
held it did not have jurisdiction over the case as an appeal
from the district court because "[t]he decision is not the
judgment of a court of justice. It is the award of a
commissioner." 54 U.S. at 47. The action of the district judge
as a Commissioner was not invalidated nor did the Court
expressly address that issue. Referring to Hayburn's Case,
Taney said:
the only question upon which there appears to have
been any difference of opinion, was whether it
might not be construed as conferring the power on
the judges personally as commissioners. And if it
would bear that construction, there seems to have
been no doubt, at that time, but that they might
constitutionally exercise it, and the Secretary
constitutionally revise their decisions.
A note following the decision indicates Taney's approval of an
unreported Supreme Court decision decided in 1794 entitled
United States V. Yale Todd, which indicates such action would be
valid.
The central argument in the case at issue is framed as a
question of whether the Commission activity of the judicial
members interferes with their ability to perform their
constitutionally-required duties in the judicial branch. There
is no suggestion that the judges involved would be completely
5
disabled from their judicial duties, but only that they would be
disqualified from handling cases involving the scope of the
Commission activity. We need not decide precisely what
disqualification, if any, would in fact be appropriate to
discern that this argument cannot control the decision. The
well-known fact that judges frequently are disqualified from
handling certain cases and that the judicial branch suffers no
power dimunition therefrom simply supports a decision that the
disqualifying action of an individual judge in an executive
position does not create a separation of powers problem. The
question is whether the powers of the executive, legislative, or
the judicial branch of Government are in any way compromised by
the composition and activities of this Commission. No argument
has been made that they are diminished in any way.
The
structure of the judicial branch particularly, with its easy
cross-assignability of judges of equal power undergirds the
notion that the loss of one or two judges on particular cases
does not infringe the constitutionally-required duty of the
judiciary. 28 U.S.C.A. SS 291, 292, 294.
Appellant argues that this Commission is an improper
merging of the branches of Government. That assertion is made
principally on the ground that members of the three branches are
on the Commission. The short answer to this argument is that
the congressional members of the Commission exercise no powers
of Congress, and the judicial members no powers of the
judiciary, in service on the Commission. Simply put: the
6
judges do not wear their robes in the Commission room. This
point is crisply made by the provision that to enforce
subpoenas, the Commission must go to court. President's
Commission on Organized Crime; Subpoena Power, P.L. 98-368,
3 2 (b) (1), 98 Stat. 490 (1984). It is reinforced by the
provision that the judges' expenses are not paid from the
judicial budget. Exec. Order 12435, Section 3 (b), 48 Fed. Reg.
34, 723 (1983).
This analysis reveals the inappropriateness of attempting
to adapt the functional standard of Nixon V. Administrator of
General Services, 433 U.S. 425 (1977) to this case. See United
States V. Nixon, 1418 U.S. 683 (1974). The Nixon cases involved
the issue of whether the exercise of judicial power encroached
on the separate power of the executive. Since no judicial power
is here exercised, except by the court that enforces this
subpoena, the Nixon cases are inapposite.
The decision here does not detract from the dictum in
Buckley V. Valeo, 424 U.S. 1, 123 (1975) that:
The Court has held that executive or
administrative duties of a nonjudicial nature may
not be imposed on judges holding office under Art.
III of the Constitution. United States V.
Ferreira, 13 How. 40 (1852); Hayburn's Case, 2
Dall. 409 (1792).
The issue is not whether the President or Congress could require
the judicial and congressional officers here to serve on the
Commission. There is nothing in this record to suggest that the
7
members did not voluntarily accept the appointment. There is
nothing in this decision to suggest that they could not have
declined appointment, had they chosen to do so.
Although no assertion of the Buckley principle has been
judicially tested, Presidents in recent years have frequently
appointed both members of the Federal judiciary and members of
Congress to commissions established to advise them on important
issues of public policy. See, e.g., Exec. Order 11412, 3 C.F.R.
726 (1966-1970 Comp.) (Presidential appointment of Judge A. Leon
Higginbotham, Senators Philip A. Hart and Roman Hruska, and
Representatives Hale Boggs and William M. McCulloch as members
of National Commission on Causes and Prevention of Violence);
Exec. Order 11236, 3 C.F.R. 329 (1964-1965 Comp.) (Presidential
establishment of President's Commission on Law Enforcement and
Administration of Justice, which included Judges James B.
Parsons and Luther W. Youngdahl as members) ; Exec. Order 11130,
3 C.F.R. 795 (1959-1963 Comp.).
The general thrust of the argument as to
unconstitutionality is that this Commission is a law enforcement
agency engaged in activities in which federal judges simply
should not be involved. To point out the appellant's
perception in this regard, the following portion of his brief is
quoted:
The Commission is not a mere study or reading
group, or even an intellectual think tank. It is
not studying a precise problem solely for the
purpose of advising the public. It is a powerful
investigative body whose actions impact greatly
.8
the three branches. Its powers are
antial and have the force of law. At its
ith
the Commission's stated goal and role is to
be
crime. To succeed in its purpose, its
rts
are classified as "investigative or law
ake
cement officers" (P.L. 98-368 6 (a) (1)) for
ate
urposes of access to records and information.
and
Commission has apparent authority to compel
mony and even require the production of
(P.L. 98-368, $ 2). In all its
the Commission is answerable to the
(1983). It
dent, through the Attorney General (E.O.
$ 4), and obtains needed resources from the
implement
General (E.O. 12435, $ 3(c)). As it goes
accomplishing its goals, the Commission
nvestigate
findings about organized crime, evaluates
laws pertaining to organized crime, and
t has no
makes recommendations concerning
istrative, legislative and judicial
appointed
vement (E.O. 12435, $ 2(a)).
ssion Act,
eason of the purpose and role of the
ssion, the statutory interaction of the
arily separate branches of government are
to work together in a manner which
to decide
rdizes the Constitutionally mandated
endence of each. A judge cannot be placed in
ission, it
sition of being a law enforcement officer
rable to the Attorney General. A judge
judges to
be called upon to investigate criminal
and give advisory opinions regarding the
nment with
tiveness of the law enforcement effort
organized crime. A judge cannot be placed
expertise
a position of recommending legislative
to emerging problems. Similarly, a
ion to the
essional representative is ill-equipped, in a
itutional sense, to take on the role of a law
1, judges
cement officer or to utilize the tools
able to the Executive to combat crime. It is
osed rules
the function of the Congress to advise the
ney General or the President how to utilize
matters as
detection and prevention methods. Yet, the
compels its members to do all this and
inal Laws:
iary, 97th
ary to this argument, the Commission is simply to
idge Gerald
ecommend. It is to:
ppeals for
codify the
9
minal Laws: Hearings Before the Subcommittee on
I must
stice of the House Committee on the Judiciary, 95th
in the
pt. 3, at 2473-84 (1978) (testimony of Judge
court.
United States District Judge, Southern District
ition, it
)mmittee.
if the Commission is determined to be
,2 (1984),
ionally constituted, I agree with Judge Fay that its
legislative
in the issuance of this subpoena should be given de
Id. at
and the subpoena can be properly enforced, under
by the fact
of Buckley V. Valeo, 424 U.S. 1 (1976) and
statute,
peline Co. V. Marathon Pipe Line Co., 458 U.S. 50
refore,
explains,
I would affirm the judgment of the district court.
ore
of the two
itimacy to
Valeo, 424
sponse to a
;
if the
11
11 duties,
$ of the
ent.
E require an
alteration in its membership, and cast no doubt on the continuing viability of
the actions it had taken, the conferral of de facto validity was a plausible
solution.] Here, where the reconstitution of the President's Commission in
accordance with Separation of Powers principles requires an alteration in its
membership, it would be improper for this Court to second guess the influence of
the disqualified members of the Commission, by according de facto validity to
its prior actions in connection with Scaduto.
Thus, I believe we have no choice but to hold all prior actions of the
Commission in its attempt to secure Scaduto's testimony invalid and to reverse
the judgment of the district court.
FOOTNOTE
1/ The Buckley Court may have been mistaken, however, in taking its remedial
bearings from the reapportionment cases. See id. at 142. These cases imposed
de facto validity on the legislation enacted by legislatures elected from
malapportioned districts, because to do otherwise would have "produce[d] chaos."
Ryan V. Tinsley, 316 F.2d 430, 432 (10th Cir. 1963). It is unclear that chaos
would have resulted from the invalidation of the prior acts of the Federal
Election Commission, and it surely will not result from the invalidation of the
acts of the President's Commission on Organized Crime in connection with
Scaduto.