The opinion of the court was delivered by: COOLAHAN
COOLAHAN, United States Senior District Judge.
Defendant George Weingartner is charged in this three-count indictment with violations of 18 U.S.C.§ 922(h)(1),
/ which makes unlawful the receipt of firearms shipped or transported in interstate commerce by a person under indictment for an offense punishable by imprisonment exceeding one year. Specifically, it is alleged that defendant received firearms (previously in interstate carriage) during December, 1977 (Count I), May, 1978 (Count II), and June, 1978 (Count III); and, that at those times, defendant was under indictment in this District for violations of 18 U.S.C. §§ 371, 1503, 2512(a)(1),
/ (Criminal No. 74-313, hereinafter "1974 indictment").
Presently before the Court is defendant's omnibus pre-trial motion, F.R.Crim.P. 12(b). Defendant moves that we dismiss the the instant indictment, hold a Franks hearing
/ on the truthfulness of certain portions of the search warrant affidavit, and suppress evidence seized pursuant to various warrants based on that affidavit. Defendant also requests a bill of particulars, wherein he principally seeks information concerning the Government's decision to dismiss the 1974 indictment.
Most of the facts pertinent to consideration of the motions sub judice relate to the history of proceedings under the 1974 indictment. On Friday, September 28, 1979, on the Government's motion pursuant to F.R.Crim.P. 48(a), this Court (per my Brother, The Honorable H. Curties Meanor) signed an Order dismissing the 1974 indictment against Weingartner. It is uncontested that that the reason asserted therefor was was the unavailability of key Government witnesses. We also take note of defendant's contention that on or about June 26, 1979, the Office of the United States Attorney declared that it did not intend to pursue prosecution of one of Weingartner's co-defendants under the 1974 indictment.
During the late spring and summer of 1979, Weingartner voluntarily testified five times before the grand jury in connection with this and other somewhat related investigations. Each time defendant appeared, he was duly informed that he was a target of the (investigations), and he was further informed of his applicable rights. On August 16, 1979, in pertinent parts, Weingartner testified:
"[Mr. Weingartner] We have all talked about indictment 74-313 here. I was indicted in 1974, and have not asked for one postponement. That's why I'm so concerned about a Grand Jury because at that time, unaware that I was that we could speak before a Grand Jury like I am today, I just went down and refused to answer questions and we got indicted and yet this indictment, and I am sure Mr. Robins [the prosecutor] knows about it and everyone else, is going to be dismissed. [Sic.]
"[Mr. Robins] Just to make the record, Mr. Robins does not know whether the indictment will be dismissed."
Appendix to the Government's Brief in Opposition to Defendant's Various Pre-Trial Motions (hereinafter "Gov't Br., App."), Transcript of Grand Jury Proceedings, August 16, 1979, at 42.
It is also noteworthy that the record substantiates the Government's assertion that Weingartner never challenged the validity of the 1974 indictment. See Gov't Br., App., Affidavit of Warren S. Robins, Special Attorney, P3. Indeed, the docket of Criminal No. 74-313 (and that of a related case, Criminal No. 74-314, in which Weingartner was not a co-defendant,) reveal that the delay in bringing Criminal No. 74-313 to trial was occasioned by numerous pre-trial motions, competency and taint hearing, and subsequent stays and appeals to the Third Circuit.
The following seemingly important events also warrant our attention. During his initial grand jury appearances, Weingartner expressed a desire to play his tape recordings of certain conversations. On August 2, 1979, he indicated that he had five tapes he wished the grand jury to hear, one of which contained a conversation between Weingartner and two (formerly undercover) Government Agents investigating this and other suspected offenses. In order to avoid wasting the grand jurors' time, the foreman directed that Weingartner first play his tapes for the prosecuting attorneys in their office, so that the prosecutors could preliminarily assess (and thereafter advise the grand jury of) the audibility and relevancy of the tapes. Gov't Br., App., Transcript of Grand Jury Proceedings, August 2, 1979, at 24-27.
After initially failing to make such arrangements, Weingartner was again directed by the foreman of the grand jury to do so. Gov't Br., App., Transcript of the Grand Jury Proceedings, August 16, 1979, at 9-12. On August 21, 1979, Weingartner, accompanied by one Richard DeScissio, came to the prosecutor's office where Weingartner played several tapes in the presence of the prosecuting attorney, Mr. DeScissio, and the two (formerly undercover) Government Agents. Defendant initially objected to playing his tapes in the presence of the two Government Agents (who were supposedly parties to some of the recorded conversations), but eventually he agreed to do so. Gov't Br., App., Transcript of Grand Jury Proceedings, August 23, 1979, at 33.
Each of defendant's motions shall be considered in turn.
I. MOTION TO DISMISS THE INDICTMENT
Defendant makes a four-pronged attack on this concededly facially valid indictment. First, he urges that 18 U.S.C. § 922(h)(1) is unconstitutional as applied. Second, he asserts that the prosecutor's failure to inform the grand jury of the dismissal or potential dismissal of the underlying 1974 indictment constituted gross usurpation of the discretionary power of the grand jury not to return an indictment. Third, even if the prosecutors' actions do not warrant dismissal, defendant further argues that "fundamental fairness" requires that the Court quash the instant indictment because it was returned after the dismissal of the underlying indictment. Finally, defendant contends that the presence of the two formerly undercover Government Agents during the preliminary playing of Weingartner's tapes constituted an unauthorized disclosure of a grand jury proceeding in violation of Rules 6(d), 6(e), F.R.CrimP.Each of his arguments shall be considered seriatim.
a. Constitutionality of 18 U.S.C. § 922(h)(1) As Applied
Defendant offers a triad of theories supporting his argument that this statute is unconstitutional as applied. Only two of his theories, however, require complete textual consideration:
/ first, that the statutory scheme operates to deny Weingartner equal protection; and, second, that the statute contains an irrebuttable presumption.
Unlike the Fourteenth Amendment, the Fifth Amendment does not contain an express Equal Protection Clause. The fundamental principle of equal protection under the law, however, is inherent in the Fifth Amendment's Due Process Clause. Mathews v. De Castro, 429 U.S. 181, 182 n. 1, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976). As stated in Schneider v. Rusk, 377 U.S. 163, 168, 84 S. Ct. 1187, 12 L. Ed. 2d 218 (1964): "while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'"
Thus, although the protections afforded by the Fifth and Fourteenth Amendments "are not always coextensive," Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S. Ct., 1895, 48 L. Ed. 2d 495 (1976), equal protection challenges to federal laws and regulations generally have been tested with the standards developed under the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 642-43, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); United States v. Wynde, 579 F.2d 1088, 1093 (8th Cir.), cert. denied, 439 U.S. 871, 99 S. Ct. 204, 58 L. Ed. 2d 184 (1978); United States v. Craven, 478 F.2d 1329, 1338-40 (6th Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 54, 38 L. Ed. 2d 85 (1973); United States v. Thoresen, 428 F.2d 654, 658 (9th Cir. 1970).
Under settled equal protection doctrine, a statute that neither impermissibly infringes on the exercise of a fundamental right nor distinctly disadvantages a suspect class of persons is upheld so long as there is any rational basis underlying the statutory scheme.
/ E.g., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 & nn. 3-4, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Hurtado v. United States, 410 U.S. 578, 590, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973).This rational basis test "does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.... It is enough that the State's action be rationally based and free from invidious discrimination." Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) (citation omitted). It "employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." Massachusetts Bd. of Retirement v. Murgia, supra, 427 U.S. at 314. Thus, the challenged statute will not be overturned "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purpose that [the Court] can only conclude that the legislature's actions were irrational." Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 59 L.E.2d 171 (1979).
Defendant recognizes that earlier equal protection challenges to indictee classification schemes like that embodied in 18 U.S.C. § 922(h)(1) have been uniformly unsuccessful, e.g., United States v. Craven, supra, 478 F.2d at 1338. He attempts instead to factually distinguish this case by observing that the 1974 indictment did not charge him with any "violent" offense. Conceding, arguendo, that the "non-violent" offenses charged in the underlying indictment can serve as a basis for a section 922(h)(1) firearms offense, see notes 2,5 supra, defendant urges that we find irrational the inclusion of so-called "non-violent" offense indictees within the class prohibited from the receipt of firearms previously in interstate carriage.
Defendant's argument is neither novel nor persuasive. At least two Circuits of the United States Court of Appeals have considered and rejected the same argument about an identical classification scheme in a related statute, 15 U.S.C. § 902(e) (repealed).
/ In United States v. Thoresen, supra, the Ninth Circuit reasoned that the extension of the firearms prohibition to indictees of "non-violent" offenses was rationally based on the ineffectiveness of the prior "violent" offense restriction. 428 F.2d at 659. The Fifth Circuit likewise found the same argument wanting in United States v. brown, 484 F.2d 418, 423-24 (1973), cert. denied, 415 U.S. 960, 94 S. Ct. 1490, 39 L. Ed. 2d 575 (1974), stating:
"[We] find no merit in the claim that § 902(e) is unconstitutional for the alleged reason that it draws no distinction between indictment for crimes of violence and non-violence.... We are unable to conclude that this classification is without a rational basis. The differentiation of the statute among indicted persons according to the seriousness of the crimes with which they are charged is, without more, sufficient in our judgment."
Furthermore, and contrary to defendant's argument, Thoresen and Brown are valid precedent here because the line drawn in now repealed 15 U.S.C. § 902(e) is identical to that drawn in present 18 U.S.C. § 922(h)(1). See United States v. Craven, supra, 478 F.2d at 1335 n.3, 1339; compare note 8 supra with note 1 supra.
This Court concurs in the well-reasoned conclusions of both the Fifth and Ninth Circuits that this indictee classification is not irrational. Congress could rationally conclude that persons indicted for non-trade regulation offenses punishable by a term of imprisonment exceeding one year have a significantly greater propensity for the misuse of firearms than the population as a whole. In enacting the Omnibus Crime Control and Safe Streets Act of 1968, which retained the substance of repealed 15 U.S.C. § 902(f) in present 18 U.S.C. § 922(h)(1), see note 8 supra and cases cited therein, Congress did not merely attempt to restrict interstate firearms transactions. Rather, it also sought in the broadest sense to prohibit the acquisition of firearms by persons it reasonably viewed as potentially dangerous or irresponsible. See Barrett v. United States, 423 U.S. 212, 220-21, 96 S. Ct. 498, 46 L. Ed. 2d 450 (1976). This conclusion is reinforced by the temporary nature of the barrier erected in section 922(h)(1), for the prohibition in futuro evaporates upon dismissal of the underlying indictment or acquittal at trial. In these circumstances, it cannot be seriously thought that the classification Congress enacted lacks any rational basis. United States v. Thoresen, supra, 428 F.2d at 658-59, followed in United States v. Craven, supra, 478 F.2d at 1339.
Accordingly, we find that 18 U.S.C. § 922(h)(1) does not deny defendant equal protection as applied.
2. Irrebuttable Presumption
Defendant's second theory is that section 922(h)(1) contains an irrebuttable presumption akin to those proscribed in Lerry v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L.E.2d 57 (1969), and its progeny, e.g., Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973). Stripped to its essence, it is defendant's theory that the statute in question conclusively presumes that any person under indictment for the specified offenses has a propensity for violence.
This argument is also unpersuasive. Leary and its progeny are inapposite because an indictee's propensity for violence is not an element of a section 922(h)(1) charge. The Ninth Circuit rejected the same argument in United States v. Thoresen, supra, 428 F.2d at 661. The Thoresen Court explained that Leary concerns an evidentiary presumption: proof of one element of the offense, possession of marijuana, irrebuttably established a second element, knowledge of illegal importation.
/ On the other hand, section 992(h)(1) embodies a Congressional policy determination that the status of indictment for certain offenses is indicative of a propensity for the misuse of firearms. See United States v. Craven, supra, 478 F.2d at 1339. Put another way, the status of being under indictment for an offense punishable by imprisonment exceeding one year is an element of a section 922(h)(1) offense but, unlike Leary or its progeny, proof thereof does not irrebuttably or conclusively establish any other element of the offense.
Accordingly, the Court rejects defendant's arguments that 18 U.S.C. § 922(h)(1) is unconstitutional as applied.
b. Failure to Inform the Grand Jury of the Dismissal of the Underlying Indictment
Defendant's next ground in support of his motion to dismiss is that the prosecutor's failure to voluntarily inform the grand jury of the dismissal or potential dismissal of the underlying 1974 indictment was a flagrant abuse of the grand jury and warrants quashing the subject indictment. Before consideration is given this argument, however, it is appropriate to make some preliminary observations.
First, it is noteworthy that the grand jury was not unaware of the possibility that the 1974 indictment against Weingartner might be dismissed. Weingartner himself testified before the grand jury that he thought dismissal of the underlying indictment was imminent. See discussion at 2, supra. The prosecuting attorney thereupon denied any personal knowledge of the potential dismissal.
Second, there is no evidence of record that the prosecutor's denial of personal knowledge of the potential dismissal was not made in good faith. Defendant also has not explicitly contended otherwise. We also think it reasonable to infer that the grand jurors did not make any subsequent inquiry of the prosecutor concerning the status of the 1974 indictment. Nor, do we assume, did the prosecutor volunteer any further information on this score.
Finally, we need not consider whether the prosecutor was under a duty to disclose the potential dismissal of the underlying indictment, inasmuch as the subject indictment was not returned until after the dismissal of the 1974 indictment. If the Government attorney was under no duty to inform the grand jury of the actual dismissal, a fortiori he was not obliged to inform the jurors of the possibility of dismissal. Thusly framed, the question presented is whether the prosecutor is legally bound to inform the grand jury of the dismissal of the underlying or predicate indictment. This question, in turn, requires preliminary consideration of the function assigned the grand jury in our system of criminal jurisprudence.