In re Bonanno, 454

• Decision Date: 30 April 1965
• Docket Number: Docket 29583.,No. 454,454
• Citation: 344 F.2d 830
• Parties: In re Salvatore BONANNO, Appellant, and Proceedings Before October 1964 Additional Grand Jury.
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 830 (1965)

In re Salvatore BONANNO, Appellant,

and

Proceedings Before October 1964 Additional Grand Jury.

No. 454, Docket 29583.

United States Court of Appeals Second Circuit.

Argued April 1, 1965.

Decided April 30, 1965.

Albert J. Krieger, New York City (Robert Kasanof, New York City, on the brief), for appellant.

Otto G. Obermaier, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for Southern District of New York, John S. Martin, Jr., Asst. U. S. Atty., on the brief), for United States.

Before LUMBARD, Chief Judge, and SWAN and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge:

Contending that a privileged relationship justified his refusal to answer certain questions in the course of a grand jury inquiry and that the special proceedings rejecting the claim of privilege did not comport with due process requirements, Salvatore Bonanno appeals from a judgment of commitment for civil contempt. The contumacious conduct occurred when, despite the District Court's ruling that answers to the questions would not require disclosure of confidential attorney-client communications, Bonanno persisted in invoking the privilege both before the grand jury and the judge, despite his direction to answer the questions. Bonanno is presently committed to custody until he purges himself of contempt by answering the questions. We affirm, finding neither procedural nor substantive error in the District Court's determination that Bonanno failed to meet the burden of establishing the essential predicate to invocation of the privilege — existence of an attorney-client relationship.

On January 5, 1965, having been served with a material witness warrant in Tucson, Arizona, Bonanno appeared before the October 1964 Additional Grand Jury, sitting in the Southern District of New York, to testify concerning the sudden and dramatic disappearance of his father, Joseph Bonanno, during the grand jury's investigation. After he was granted immunity from prosecution, 47 U.S.C. § 409(l), thus effectively removing the cloak of the privilege against self-incrimination, Bonanno, on January 14, declined to answer two questions concerning telephone conversations between himself and William Power Maloney which took place on December 18 and 19, 1964. He claimed that Maloney, who concededly was his father's attorney, was his own counsel as well; if accepted, this claim would have insulated the allegedly confidential communications from grand jury scrutiny.

Following our direction in United States v. Kovel, 296 F.2d 918, 96 A.L.R.2d 918 (2 Cir. 1961), that proper practice in such instances requires a preliminary judicial inquiry, with the grand jury excused, into the existence of the privilege, a full hearing was held before Judge Tenney. The testimony, which we shall detail below, focused on the threshold but crucial question of the alleged attorney-client relationship between Maloney and Salvatore Bonanno. It was unnecessary to reach the further question whether the particular telephone conversations were themselves privileged communications between attorney and client because Judge Tenney, after giving "careful consideration" to the testimony before him, ruled that Bonanno had not "met or even approached" the burden of presenting evidence to support his claim that Maloney was his lawyer. Bonanno then was directed to answer the questions, but refused to do so when they were, once again, propounded before the Grand Jury and also after direction by the Judge in open court. His adjudication for civil contempt followed.

So that our assessment of the validity of that judgment may be understood, we have briefly summarized the testimony presented to Judge Tenney, which he characterized as "so filled with contradictions, improbabilities, and inconsistencies, as to render it unworthy of belief." The hearing before the Judge opened with Bonanno testifying that the attorney-client relationship arose when he and his father Joseph met with Maloney on an unspecified date in August 1964, after Joseph had returned to New York from Canada. He said he presented his own legal and tax problems to Maloney, feeling that they were closely related to similar problems of his father.

On cross-examination, Bonanno was confronted with his grand jury testimony, given just two weeks earlier, in which he denied ever having retained Maloney or any other attorney in New York, with the exception of his present counsel, retained in connection with the grand jury proceeding. Seeking to account for this glaring inconsistency, Bonanno explained that the earlier answers were limited to the specific grand jury proceedings in which he was then a witness, notwithstanding the fact that he had told the grand jury, "I know a few attorneys in New York, and I'm just trying to figure out if they've ever represented me in any matter." (Emphasis supplied.)

Maloney also was a witness at the preliminary hearing. On direct examination, he said that in August 1964 Salvatore and Joseph Bonanno conferred with him and that Salvatore sought his advice as an attorney. But he, too, was unable to pinpoint either the date he was retained or corroborative details of the alleged retainer. And, although Salvatore testified that in August he paid Maloney a fee in cash, Maloney stated that the only sum he received was a payment of less than $500 for expenses in September, which he did not note in any office income or disbursement record.

The Government, on cross-examination, then confronted Maloney with his prior testimony before the grand jury in which he stated that he had been retained by Salvatore Bonanno during a telephone conversation on December 18, 1964. This testimony was not only inconsistent with the claim made by both parties in the hearing before Judge Tenney that their confidential relationship arose in August, but also contrary to Bonanno's denial that he discussed Maloney's representation during the December telephone conversation.

After the preliminary hearing had been closed, Bonanno alleged that he had acquired additional evidence to substantiate the claimed attorney-client relationship. Judge Tenney, in an effort to throw as much light as possible on the subject which up to this point consisted of a bundle of contradictions, granted the appellant's motion to reopen the hearing, over the Government's objection, and proceeded to take more testimony. This alleged "new evidence" consisted of a petition to the Tax Court which Bonanno claimed had been prepared in Maloney's office on August 10, 1964, the last day for answering a 90-day deficiency letter from the Internal Revenue Service. Maloney's secretary, Aileen Richmond, identified a photocopy of an incompletely executed copy of the original petition, which she testified was dictated jointly by Maloney and Lawrence P. D'Antonio, Salvatore Bonanno's Arizona counsel. Although she previously had told the grand jury she never overheard any conversations between Maloney and Bonanno, Mrs. Richmond now distinctly remembered that both men discussed the tax petition. But she was unable to produce any corroborative stenographic notes which recorded the alleged dictation taken from Maloney and D'Antonio.

The general tenor of Mrs. Richmond's testimony was echoed by both Bonanno and Maloney at this reopened hearing although, significantly, D'Antonio was never called by appellant to testify. On cross-examination, Maloney admitted that he had never consulted Bonnano in connection with tax matters before August 10, that this was the first and only occasion on which he participated in the preparation of any tax documents for Bonanno, that he could not recall ever representing any client at any time in the Tax Court, and, indeed, was not admitted to practice...