In re Cueto, M-11-188.
| Decision Date | 23 January 1978 |
| Docket Number | No. M-11-188.,M-11-188. |
| Citation | 443 F. Supp. 857 |
| Parties | In re Maria T. CUETO and Raisa Nemikin, Contemnors. |
| Court | U.S. District Court — Southern District of New York |
Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, by Thomas E. Engel, Marc Marmaro, Asst. U. S. Attys., New York City, of counsel, for the U. S.
Fink & Meyers, New York City, by Elizabeth M. Fink, Margaret L. Ratner, New York City, of counsel, for contemnors.
Cahill, Gordon & Reindel, New York City, by Eugene R. Scheiman, New York City, of counsel, for National Council of Churches of Christ in the U. S.
Patterson, Belknap, Webb & Tyler, New York City, by Robert S. Potter, New York City, of counsel, for intervenors.
Movants, Maria Cueto and Raisa Nemikin, were cited for civil contempt under 28 U.S.C. § 1826(a) for refusing to answer certain questions before a grand jury investigating the terrorist bombing activities of an organization called Fuerzas Armadas de Liberacion Nacional Puertorriquena ("FALN"). Pursuant to their contempt adjudications, they were ordered confined during the life of the grand jury or until they agreed to testify, and both have been held in confinement at the Metropolitan Correctional Center — Nemikin since March 1, and Cueto since March 8, 1977. The grand jury term expires on May 9, 1978.
Movants claim that their refusal to testify before the grand jury, being based upon moral and religious commitments, is irrevocable. Accordingly, they urge that since they will not betray their religious convictions by giving testimony, their incarceration has had and can have no coercive effect, and that their continued incarceration clearly has become punitive. Therefore, movants contend that the due process guarantees of the federal constitution mandate their release in that their continued confinement bears no reasonable relationship to the purposes for which they were committed.
A clearer understanding of the narrow issue raised in this motion requires a somewhat more detailed recapitulation of the history of this litigation than ordinarily would be warranted.
Cueto has been actively involved in the work of the Episcopal Church since 1966, and her activities have been concentrated largely on issues and programs affecting the Hispanic Community. She became a member of the National Commission on Hispanic Affairs ("Commission") which was organized as an arm of the Episcopal Church to aid the Church in performing its mission of helping to provide opportunities for improving the socio-economic status of the Hispanic Community in the United States. Cueto became a director of the Commission in 1972 and held that position at the time when the events which led to her present incarceration transpired.
Nemikin has been secretary to the Commission since 1972 and held that position when she refused to give testimony before the grand jury.
In 1974-75, a series of bombings occurred at a number of buildings in New York City where banks and corporate offices were housed. FALN claimed responsibility for these terrorist acts. A grand jury investigation of the bombings and FALN's relationship to them was initiated, and on November 9, 1976, a new grand jury was organized to continue the investigation. In due course, subpoenas were issued calling for the production of certain records of the Commission.
Movants were questioned by the FBI concerning Carlos Torres, a member of the Commission whom the FBI was trying to locate and question since the government had reason to believe that Torres was implicated in the planning and/or execution of the bombings. Thereafter, subpoenas were issued calling for movants to appear before the grand jury to testify. Movants sought to quash the subpoenas, but Judge Pierce denied that motion on February 4. See In re Wood, 430 F.Supp. 41 (S.D.N.Y.1977) (Pierce, J.).
Nemikin appeared before the grand jury on February 18, 1977, and was asked and refused to answer the following questions: When did you last speak to or otherwise communicate with Carlos Torres? Identify all funds of the Commission which were directed, openly or in secret, in whole or in part, to FALN or to any FALN member? Identify to the grand jury any person you know who was involved in or claimed responsibility for the dynamite bombing of Fraunces Tavern on January 24, 1975, resulting in the death of four persons?1
Cueto appeared before the grand jury on March 4 and refused to answer the following questions: Do you know anything about the whereabouts of Carlos Torres? Did Torres play any part in the bombing of Fraunces Tavern in New York on January 24, 1975? This grand jury is trying to find out, among other things, who is responsible for the bombing of Fraunces Tavern that killed four people. Can you tell us the names of any person who participated in the bombing or do you have any information at all with respect to it?2
Movants were taken before Judge Frankel of this court who advised them that they had no recognizable right to refuse to answer the questions put to them before the grand jury. Each persisted in her refusal, and each was adjudged in contempt by Judge Frankel — Nemikin on February 26 and Cueto on March 4. Each was ordered incarcerated for the life of the grand jury or until they agreed to testify pursuant to 28 U.S.C. § 1826(a), which provides:
Judge Frankel's adjudication of contempt was affirmed on appeal. In re Cueto, 554 F.2d 14 (2d Cir. 1977). Thereafter, on or about May 20, 1977, movants, making substantially the same argument being made here, sought relief before Judge Stewart of this court from incarceration or, in the alternative, for an order fixing their incarceration to a certain and definite term. Judge Stewart denied their motion as being premature, insofar as it asserted that their confinement no longer served a coercive function, in view of the short length of their incarceration — at the time, slightly in excess of 60 days.
Movants urge here that their refusal to testify is grounded in firmly held religious beliefs, and that their work with the Commission was a part of the mission of the Episcopal Church of the United States to millions of Spanish speaking people who have experienced a history of denial of basic human rights in this country. Movants claim that their function as lay ministers in the Church would be impaired if they testified, and they assert, in effect, that since they will never testify, the coercive objective of their confinement will not be realized and their continued confinement can only be punitive.
Movants' recalcitrance is supported by the Bishop and other dignitaries of the Episcopal Church of Puerto Rico, by the National Council of the Churches of Christ in the United States ("National Council"), by the Bishop of the Episcopal Diocese of New York and by the Resigned Bishop of the Episcopal Diocese of Pennsylvania, as well as by other less eminent persons and bodies in the Church. The National Council and the various Bishops referred to have been allowed to appear as amici curiae. All assert that movants' defiance of the court's order to provide information to the grand jury is an exercise of the First Amendment right of freedom of religion, the matrix of religious and individual liberty in an open society. Amici also assert, although movants do not, that Cueto and Nemikin have no knowledge of FALN or of the bombings. While the Episcopal Church of the United States, under whose auspices the Commission was organized and functions, did not appear as amicus curiae, the government, in an exemplary demonstration of prosecutorial candor, advises that the Presiding Bishop of that body has met repeatedly with responsible government officials seeking movants' release. Thus, for whatever it is worth, a sizable segment of the officialdom of the Episcopal Church holds and has articulated a concern that tenets of religious freedom which are protected by the Constitution are being infringed by the government's insistence that these two women be required to respond to the grand jury inquiry, and movants' continued incarceration is viewed as wrongful governmental persecution.
While it is difficult for me to understand how that position can be seriously advanced by amici curiae in light of the particularly innocuous questions put to Cueto and Nemikin before the grand jury, I need not face the religious issue frontally since Judge Pierce has conclusively demonstrated that no violations of the First Amendment's guarantee of religious freedom are even remotely involved in this case. Although movants concede that that issue is foreclosed, they argue that the fact that movants believe themselves compelled to continue in their stance of defiance because of their religious convictions and commitments — a position, as I have indicated, that is supported by a not insignificant segment of their Church's hierarchy — provides an articulated moral basis for their recalcitrance.
Cueto's and Nemikin's posture is surely wrongheaded and without support in law, but I accept what I conceive to be the real point of the argument, that...
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