Knapp v. Schweitzer

• Decision Date: 27 November 1956
• Citation: 157 N.Y.S.2d 158,2 A.D.2d 579
• Parties: , 32 Lab.Cas. P 70,707 Matter of the Application of Milton KNAPP for an order under Article 78 of the Civil Practice Act, Petitioner-Appellant, v. Mitchell D. SCHWEITZER, Judge of the Court of General Sessions and Frank S. Hogan, District Attorney of the County of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 158

157 N.Y.S.2d 158

2 A.D.2d 579, 32 Lab.Cas. P 70,707

Matter of the Application of Milton KNAPP for an order under Article 78 of the Civil Practice Act, Petitioner-Appellant, v. Mitchell D. SCHWEITZER, Judge of the Court of General Sessions and Frank S. Hogan, District Attorney of the County of New York, Respondent.

Supreme Court, Appellate Division, First Department.

Nov. 27, 1956.

Bernard H. Fitzpatrick, New York City, of counsel (William J. Keating, New York City, on the brief; William J. Keating and Butler, Bennett & Fitzpatrick, New York City, attorneys), for appellant.

Albert P. Loening, Jr., Asst. Dist. Atty., New York City, of counsel (Charles W. Manning, Asst. Dist. Atty., New York City, on the brief; Frank S. Hogan, Dist. Atty., New York City, attorney), for respondents.

Before BOTEIN, J. P., and RABIN, COX, FRANK, and BERGAN, JJ.

BERGAN, Justice.

Petitioner Milton Knapp has been committed for contempt by the Court of General Sessions for failure to answer questions before the New York County Grand Jury. He is a co-partner of Eagle Reel and Manufacturing Co., which is engaged in interstate commerce. The employees of the firm are organized by Local 239 of the International Brotherhood of Teamsters.

The subject on which the Grand Jury inquiry was being prosecuted and in which the testimony of petitioner was sought to be elicited was whether the crimes of bribing labor representatives, under Penal Law, § 380; of conspiracy, under § 580; and of extortion, under § 850, had been committed.

When called before the Grand Jury on April 23, 1956, petitioner asserted his privilege against self-incrimination. This privilege is preserved by the New York Constitution, Article I, § 6. He was required, nevertheless, by the Grand Jury on a later date to answer the questions directed to him and upon this mandate he acquired, and was expressly given by the Grand Jury, an immunity co-extensive with the operational effect of New York law. Penal Law, § 2447; Cf. People v. De Feo, 308 N.Y. 595, 127 N.E.2d 592.

Petitioner thereupon asserted that although the statute regulating immunity in New York would protect him against prosecution in this State based on his testimony, answers elicited under compulsion of New York authority would incriminate him under Federal law which makes unlawful, among other things, the payment of money by an employer to any representative of his employees in an industry affecting commerce, 29 U.S.C. § 186, 29 U.S.C.A. § 186. He thereupon persisted in refusal to answer the questions before the Grand Jury and was held in contempt by the Court of General Sessions.

This is an Article 78 proceeding against the judge presiding at the General Sessions at which petitioner was held in contempt and against the District Attorney of New York County in the nature of prohibition. The amended answer pleads matters largely in the nature of defenses of law; and a reply served by the petitioner contains an affirmative pleading that the 'reality of petitioner's danger of self-incrimination' under provisions of the Federal Labor Management Relations Act is based on the public announcement of the United States Attorney of the Southern District of New York of an intention 'to cooperate with the District Attorney of New York County in the prosecution of criminal cases in the field of the subject matter of which petitioner's commitment arose'. This reply further alleges that the respondent District Attorney 'intends to cooperate with' the United States Attorney 'in the prosecution of such criminal cases in the courts of the United States'.

Since the court at Special Term disposed of these issues summarily without trial and by a dismissal of the petition which carried with it a dismissal of the reply as being insufficient, we are required to accept as true upon this appeal the factual allegations of the reply in respect of the cooperation between Federal and State prosecuting officers in this area of criminal responsibility occupied both by Federal and State governments within their respective statutory enactments. Doherty v. McElligott, 258 App.Div. 257, 258, 260, 16 N.Y.S.2d 489, 492, 494.

We therefore are required to begin the consideration of the question raised by the petitioner by accepting as a demonstrated fact in the record before us the actual co-operative policy between the appropriate Federal and State authorities in prosecuting crimes arising from acts made criminal both by Congress and by the New York Legislature and concerning which the petitioner's testimony is sought to be compelled.

If the literal logic of some of the decided cases be carried to the ultimate it would seemingly be quite possible for a State prosecuting authority to obtain a direction to compel a witness to incriminate himself upon granting a State immunity and for this to be followed by a Federal prosecution for the act disclosed under compulsion; and, indeed, with the compelled testimony used in support of the Federal charge.

But the full implications of such a concave view of constitutional privilege have not been faced, and the cases which have called up discussion of the question have not required that this ultimate question be decided. In the margin of decision the view sometimes has been expressed that the possibility of Federal prosecution upon the compelled State disclosure has been remote or unlikely.

The complex and delicately adjusted balance of sovereignties between Federal and State governments presupposes a related measure of responsibility for each. Each is bound by identical constitutional restraints. The State has its function under the United States Constitution as well as the Federal government; and they have extremely close and continuous relations with each other. We are not here treatin of sovereign strangers but of inseparable sovereigns of the same fibre and substance.

The cases of different sovereign jurisdictions decided under English law and sometimes cited in American cases on this subject, seem to us to have only illustrative or peripheral relation to the precise American constitutional problem of what ought to happen when a State compels criminal self-incrimination in an area of actual exposure of the witness to prosecution under effective and operative Federal criminal law. Examples of the often cited English cases which hold the British court will not protect witnesses against violation of the law of another country are King of the Two Sicilies v. Willcox, 7 State Trials, N.S. 1050, 1068; Queen v. Boys (1 B. & S. 311, 330). Cf. United States v. Murdock, 284 U.S. 141, 149, 52 S.Ct. 63, 76 L.Ed. 210.

The States of the United States certainly are not 'other countries' in relation to the Federal government. Federalism as we have developed it does not exist in airtight compartments of sovereign power; both general and state governments spread together over the same land and embrace the same people.

The whole tenor of constitutional law as developed in the courts of the United States suggests that a witness compelled by a State to testify against himself in a criminal case also affected by Federal law, where the Federal prosecuting authorities have knowledge of the State proceedings, and especially where they cooperate in these proceedings, will be protected fully by the judicial power of the United States against the adverse effects of such compulsion on subsequent Federal prosecution.

The usual rule is, of course, that the United States will not deem itself bound not to prosecute because of unilateral exercise of compulsion to self-incrimination by a State; and this in part on the ground that the general government will not be restrained in its policy by local action taken by a State government. The principle is illustrated in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, in which Mr. Justice Frankfurter noted that 'a State cannot by operating within its constitutional powers restrict the operations of the National Government within its sphere'. 322 U.S. at page 490, 64 S.Ct. at page 1083. See also, Jack v. State of Kansas, 199 U.S. 372, 380, 26 S.Ct. 73, 50 L.Ed. 234.

But in some of the decisions on the subject which preceded Feldman v. United States, the court regarded the risk of Federal prosecution arising from State compulsion as distant and remote; and this conception is in the overtone of the opinions as suggesting by mere remoteness a safeguard enough for the case actually presented. In Jack v. State of Kansas, for example, in dealing with an argument in objection to a State immunity statute that it did not protect against Federal prosecution in the same field, Mr. Justice Peckham agreed with the Supreme Court of Kansas that the danger that Federal prosecution 'would ever take place' was 'so unsubstantial and remote', 199 U.S. at page 382, 26 S.Ct. at page 76, that it was unnecessary, and of course not possible, for the State to provide against it.

'We do not believe that in such case there is any real danger of a Federal prosecution, or that such evidence would be availed of by the government for such purpose.' 199 U.S. at page 382, 26 S.Ct. at page 76. In dealing with the inability of the State to prevent prosecution of the same party for a Federal violation the court interpolated the comment 'if it could be imagined that such prosecution...