United States v. Theodore S. Forman

71 F.3d 1214, 1995 U.S. App. LEXIS 36094, 1995 WL 753223
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 21, 1995
Docket94-1731
StatusPublished
Cited by7 cases

This text of 71 F.3d 1214 (United States v. Theodore S. Forman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Theodore S. Forman, 71 F.3d 1214, 1995 U.S. App. LEXIS 36094, 1995 WL 753223 (6th Cir. 1995).

Opinions

RYAN, J., delivered the opinion of the court, in which NELSON, J., joined. WELLFORD, J. (p. 1220), delivered a separate concurring opinion.

RYAN, Circuit Judge.

The defendant, Theodore Forman,1 appeals from his conviction and sentence following a jury verdict finding him guilty of criminal contempt in violation of 18 U.S.C. § 401(3). The conviction is based on Forman’s alleged violation of the grand jury secrecy requirement imposed by Federal Rule of Criminal Procedure 6(e)(2). Before this court, appearing pro se, Forman raises numerous issues, but we shall address only the question whether Forman is subject to the secrecy requirement of Rule 6(e)(2); more specifically, whether he was an “attorney for the government” as that term is used in the rule.

We conclude that Forman was not “an attorney for the government,” and so was not subject to the secrecy requirement of Rule 6(e)(2). Consequently, his conviction for criminal contempt must be reversed.

I.

Forman was born and raised in Detroit, Michigan, earning his juris doctor in 1989. He was admitted to the bar and in August 1990, obtained a job with' the United States Justice Department, where he worked as a trial attorney prosecuting criminal tax cases in the criminal enforcement section of the Tax Division in Washington, D.C.

During 1992, the Organized Crime Strike Force of the United States Attorney’s Office in Detroit, Michigan, began an investigation of Vito Giacalone and his attorney, Nathaniel C. Deday LaRene. Giacalone has been publicly identified as a reputed leader of the Detroit mafia. Initially, the Giacalone/La-Rene investigation focused on allegations of extortion and money laundering. The United States District Court for the Eastern District of Michigan convened a grand jury as part of this investigation. The alleged victim of the extortion, Albert Allen, refused to testify that the approximately $500,000 that he had paid to Giacalone through La-Rene was extorted from him. The focus of the investigation then turned to tax evasion, as the $500,000 had never been declared as income. Special Agent Frank Scartozzi of the IRS was assigned to the investigation, and he subsequently prepared a Special Agent’s Report (SAR) that detailed his findings. Included in this 1200-page report were transcripts from the grand jury proceedings; the names, addresses, and, in some cases, telephone numbers of witnesses who had testified before the grand jury; a summary of the government’s investigation; a statement of the government’s theory for the prosecution of the case; and a discussion of potential defenses to the prosecution.

Generally, the United States Attorney for each district has the discretion to prosecute criminal cases arising within his or her district. However, all potential criminal tax evasion prosecutions must be approved by the Tax Division of the Justice Department in Washington, D.C. The United States At[1216]*1216torney therefore forwards all such case files to the criminal enforcement section where an attorney reviews the files and determines whether a criminal prosecution should be brought. Sometime around March of 1992, the United States Attorney for the Eastern District of Michigan sent the case file for the Giacalone/LaRene investigation to the Tax Division in Washington. The case was sent to the Northern Region Criminal Enforcement Section and was assigned to Curtis Nash, who was Forman’s office mate. Although the case file contained grand jury material, it was not kept in a secret or secure location; rather, it was kept in an open area, to which everyone who worked in the enforcement section had access, in a box marked “Giacalone/LaRene.”

In October 1992, federal agents conducting a separate investigation against Giacalone executed a search warrant at Giacalone’s office. They unexpectedly found a photocopy of Special Agent Seartozzi’s SAR for the Giacal-one/LaRene case. At this time, the grand jury investigation against Giacalone and LaRene was ongoing.

Special Agents of the FBI began an investigation to determine how Giacalone had obtained a copy of the SAR. The special agents began by interviewing everyone in the Justice Department office in which the Gia-calone/LaRene file was kept. The special agents learned that Forman’s fingerprints were on some of the photocopied pages. On January 13, 1993, Special Agent Mark Kup-ferer interviewed Forman. At first, Forman told Kupferer that he had no recollection of seeing the SAR, except perhaps when he discussed the case with Nash. Forman stated that he definitely did not discuss the case with anyone outside the Tax Division and had not photocopied the SAR. When Special Agent Kupferer told Forman that his fingerprints had been found on the photocopies found in Giacalone’s office, Forman suggested that he must have handled the original report and that his fingerprints had been transferred during the copying. Special Agent Kupferer told Forman that this was impossible. Forman then suggested that some of the originals containing his fingerprints must have been intermingled with the photocopies. Kupferer replied that all the pages seized from Giacalone’s office had been copies, not the original pages. Forman asked whether he was the target of the investigation, and when Kupferer replied that he was, Forman terminated the interview.

One month later, Forman had retained an attorney and they met with Special Agent Kupferer. Forman told Kupferer that he had indeed photocopied the SAR, but he asserted that he did it under duress because he believed that his father’s life was in danger if he did not provide assistance to the Giacalone family. The story that Forman told to Kupferer formed the basis of his defense at trial. Because Forman himself did not testify, the duress story was presented to the jury only when defense counsel drew the story out from Kupferer on cross-examination. Although, as will be discussed below, the jury apparently did not completely accept Forman’s duress story, and the district court specifically found at sentencing that the duress story was not credible, the story does have some elements of truth.

When Forman was growing up in Detroit, he lived on the same block as Paul Corrado, with whom Forman formed a life-long friendship. Paul Corrado’s father, Anthony Corra-do, is a reputed member of the Giacalone organized crime syndicate. Forman’s mother, Helen Formanezyk, amassed sizable gambling debts and Forman asserts that she squandered the entire family savings. At some point, she turned to narcotics trafficking and was arrested and convicted in 1990. She is currently serving an 11-year federal sentence. Forman told Kupferer that after his mother was imprisoned, men began to visit Forman’s father, Theodore Formanezyk Sr., demanding to be paid for Helen For-manczyk’s debts. Forman told Kupferer that when he, Forman, discussed the threats with his friend Paul Corrado, Corrado allegedly told Forman that the men were serious about collecting Helen Formanczyk’s debts. Forman told Kupferer that he asked Paul Corrado if there was anything that Corrado could do to protect Mr. Formanezyk. Corra-do responded that he would help if Forman obtained information that would help Giacal-one “beat the case.”

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71 F.3d 1214, 1995 U.S. App. LEXIS 36094, 1995 WL 753223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-theodore-s-forman-ca6-1995.