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Docket Number

Crim. No. 722-64.

Motions

Motion to dismiss : Denied

Attorney(S)

Barbara Lindemann, Asst. U.S. Atty., for the District of Columbia, Washington, D.C., for the Government. Thurman Arnold and Edgar H. Brenner, Washington, D.C., for defendant Ferguson.

Judges

Alexander Holtzoff

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Smart Summary

Case Summary: UNITED STATES v. Milton Carr FERGUSON, Crim. No. 722-64 (D. D.C. May 7, 1965)

Factual and Procedural Background

The defendant Milton Carr Ferguson, who had been appointed a Hearing Examiner by the Department of Health, Education and Welfare (HEW), was indicted as one of several defendants. After return of the indictment and following a request by the United States Attorney, an agent of the Federal Bureau of Investigation (FBI) interviewed the defendant about his HEW employment application. It was admitted that the agent asked the defendant questions concerning matters in the application; the court assumed for purposes of the motion that the agent also asked, and the defendant answered, questions relating to matters involved in the indictment. The defendant moved to dismiss the indictment on the ground that this post-indictment interview by an FBI agent was improper. The case was set for trial on the 17th of the month.

Legal Issues Presented

Whether the post-indictment interview by an FBI agent, in which the defendant was asked questions relating to matters involved in the indictment, was illegal.
If such an interview were illegal, whether that illegality requires dismissal of the indictment or some other remedy.
Whether a federal court has supervisory authority over prosecuting attorneys, law enforcement agents, and investigative officers of the Executive Branch with respect to such conduct.

Arguments of the Parties

Defendant's Arguments

Counsel for the moving defendant invoked the rule of legal ethics that a party represented by counsel should not be interviewed by opposing counsel or the representative of opposing counsel without permission or the presence of the party's counsel.
By analogy, it was argued that the post-indictment interview by the government's agent concerning matters involved in the indictment was improper and warranted dismissal of the indictment.

Government's Arguments

The opinion does not contain a detailed account of the government's legal arguments in response to the motion to dismiss.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States ex rel. Brookfield Const. Co. v. Stewart, D.C., 234 F. Supp. 94, 96 et seq.	Support for the proposition that the branches of government are coordinate and that the court lacks supervisory authority over the Executive Branch.	Used to reinforce the court's statement that it does not have supervisory authority over United States Attorneys, their assistants, law enforcement agents, and investigative officers (Executive Branch personnel).
Trimble v. Johnston, D.C., 173 F. Supp. 651	Support for the proposition that the branches of government are coordinate and that the court lacks supervisory authority over the Executive Branch.	Applied to support the court's position rejecting a claim of supervisory authority over executive personnel involved in the investigation.

Court's Reasoning and Analysis

The court assumed, for purposes of deciding the motion, that the FBI agent asked the defendant post-indictment questions relating to matters in the indictment and that the defendant answered them. The following analytical steps were taken:

The court acknowledged the rule of legal ethics that a party represented by counsel should not be interviewed by opposing counsel or their representative without the party's counsel's permission or presence, and described that rule as important.
The court explained that even if such an ethical rule applies in criminal proceedings with respect to opposing counsel, it does not necessarily extend to investigative agents or law enforcement officers.
The court emphasized that not every breach of an ethical rule constitutes illegality; an unethical interview may be unethical without being illegal.
The court addressed the notion that courts have supervisory authority over persons connected with the administration of justice, rejecting that claim as a fallacy. Citing prior authority, the court reiterated that the United States is a government of three coordinate branches and that the judiciary has no supervisory authority over the Executive Branch, including United States Attorneys, their assistants, and law enforcement agents. The court noted its supervisory authority extends only to its own personnel and staff.
Even assuming some illegality, the court concluded dismissal of the indictment would be an unduly drastic remedy for the public. The court observed that evidence improperly obtained by Executive department personnel might be excluded at trial, but such evidentiary issues were not before the court on the motion to dismiss.

Holding and Implications

Holding: The motion to dismiss the indictment is denied.

Implications:

The indictment remains pending and the criminal prosecution will proceed to trial as scheduled; the court denied the defendant's request to dismiss based on the described FBI interview.
The court indicated that evidence allegedly obtained through the interview might be challenged as inadmissible at trial, but it did not rule on admissibility in this motion and reserved that question for appropriate proceedings.
The opinion does not announce a broader remedial rule or establish a supervisory power of the court over Executive Branch investigative personnel; its decision is limited to denying dismissal under the circumstances presented.

Show full summary ...

UNITED STATES of America, Plaintiff, v. Milton Carr FERGUSON et al., Defendants.

HOLTZOFF, District Judge.

This is a motion to dismiss an indictment on the ground that subsequently to the return of the indictment the defendant was interviewed by an agent of the Federal Bureau of Investigation and that in the course of that interview he was asked some questions relating to matters involved in the indictment and that he answered those questions.

The salient facts are not in dispute. The moving defendant was appointed a Hearing Examiner by the Department of Health, Education and Welfare. Subsequently, the present indictment was returned, in which he was named as one of several defendants. The case is now set for trial for the 17th of this month.

One of the functions of the Federal Bureau of Investigation is to investigate matters relating to applications for government employment and possible misstatements contained in such applications. Subsequently to the return of the indictment the United States Attorney requested the Federal Bureau of Investigation to investigate the facts relating to the defendant's application for employment by the Department of Health, Education and Welfare. As a result of this request an agent of the Federal Bureau of Investigation made an appointment to see the defendant. Admittedly he interviewed the defendant concerning matters involved in the application and it is claimed that he also in the course of the interview asked him questions relating to the matters involved in the indictment.

The Court is going to assume for the purposes of this motion that such interrogatories were asked and answered. The question presented to the Court on this motion is whether this action of an agent of the Federal Bureau of Investigation was illegal and, if so, what the consequences of the illegality should be.

Counsel for the moving defendant point to the rule of legal ethics that a party to a law suit who is represented by counsel should not be interviewed by opposing counsel or the representative of the opposing counsel without his own counsel's permission or presence. Such a rule of ethics of course exists and it is a very important rule of ethics. To what extent this rule applies to criminal proceedings is questionable because in some jurisdictions it is not unusual for prosecuting counsel or his representative to interview a defendant even after the defendant has been indicted. Assuming, however, that such a rule of ethics applies to counsel, it surely does not extend to investigative agents or law enforcement officers. In any event, not every violation of a rule of ethics constitutes illegality. It may be unethical under certain circumstances to interview a party to a law suit without the presence of his counsel, but it is not illegal to do so. In view of these considerations the Court sees no reason for dismissing the indictment in this case.

It is suggested that the courts have a supervisory authority over all persons connected with the administration of justice. This is a fallacy. I repeat what I have said on other occasions in other connections, that our government is a government of three coordinate branches. None of the three branches has any supervisory authority over either of the other two. The United States Attorneys and their assistants, as well as law enforcement agents and investigative officers are connected with the Executive Branch of the Government. This Court has no supervisory authority over them. The only supervisory authority it has is over its own personnel and its own staff. To be sure, this Court may exclude evidence improperly obtained by members of the staffs of Executive departments, but that is a different matter.

United States ex rel. Brookfield Const. Co. v. Stewart, D.C., 234 F. Supp. 94, 96 et seq.; Trimble v. Johnston, D.C., 173 F. Supp. 651.

Even if, however, there were any illegality involved here, it need not follow that the indictment should be dismissed. There is no reason to visit such a drastic penalty upon the public. It may well be that if an attempt is made to introduce evidence obtained in this manner, that evidence may be deemed inadmissible; but this, however, is a matter that is not before this Court at this time.

In view of all the considerations that have been reviewed, the motion to dismiss the indictment is denied.

UNITED STATES v. FERGUSON, (D.D.C. 1965)