Brogna, In re

• Decision Date: 12 December 1978
• Docket Number: No. 78-1458,78-1458
• Citation: 589 F.2d 24
• Parties: In re Ellen BROGNA, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 24

589 F.2d 24

53 A.L.R.Fed. 369

In re Ellen BROGNA, Appellant.

No. 78-1458.

United States Court of Appeals First Circuit.

Argued Nov. 6, 1978.

Decided Dec. 12, 1978.

Albert F. Cullen, Jr., Boston, Mass., with whom Cullen & Wall, Boston, Mass., was on brief, for appellant.

Jeremiah T. O'Sullivan, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for the United States.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from the district court's order adjudging a grand jury witness, Ellen Brogna, in contempt for refusal to answer questions put to her. 28 U.S.C. § 1826. Brogna asserts on appeal that her refusal was lawful in that (1) she had properly asserted the fifth amendment privilege against self-incrimination and (2) had received an inadequate response from the government to her claim of electronic surveillance.

1. Privilege against self-incrimination

The district court ruled that Brogna did not establish that answering the questions would tend to incriminate her. The issue before us is the correctness of that ruling.

Brogna was subpoenaed to testify before the Grand Jury in connection with its investigation of possible violations of federal criminal laws involving sports bribery. 18 U.S.C. § 224 and § 1961 Et seq. While not granted immunity, she was told she was not a "target" and that the government did not intend to indict her. She was also told that the Grand Jury was inquiring into a nationwide race-fixing scheme involving Anthony Cuilla, Howard T. Winter, and others. The questions to which she pleaded the fifth amendment were whether she knew Howard T. Winter, whether from 1973 to 1975 she had a telephone number 625-0978, whether she resided for any portion of that period at 32 Marshall Street, Somerville, Massachusetts, and whether during that period, Howard T. Winter, John Martorano, or any of their associates received telephone calls at the phone that was in her home at 32 Marshall Street, Somerville, Massachusetts, and, if so, who and when. ¹

A district court hearing was held to determine the bona fides of Brogna's fifth amendment claim. At the hearing the Assistant United States Attorney, Mr. O'Sullivan, represented that the government had evidence that "Howard Winter and some of his associates, whom the witness (Brogna), we allege knows, did receive certain telephone calls at certain times at her phone . . . ." Mr. O'Sullivan continued,

"The grand jury would like evidence regarding the fact that while Mr. Winter was not the resident of Miss Brogna's premises, that he was there on occasion and did receive telephone calls at her phone; and the questions in the grand jury transcript are about as far as the government wants to go . . . . We don't intend to ask her the substance of any telephone conversations, or anything of that nature."

Mr. O'Sullivan said that Brogna's responses were sought to corroborate Cuilla's testimony that Winter, who allegedly controlled the nationwide horserace-fixing scheme, had been in daily telephone contact with Cuilla, giving him directions and discussing the details of the illegal operation.

Brogna's counsel, without objection or correction by the Assistant United States Attorney, amplified O'Sullivan's description as follows:

"In these particular circumstances, the government has alleged and I have been told in fact, the targets of the grand jury are . . . Winter, who allegedly is friendly and knows Miss Brogna; the other, one John Martorano, who allegedly is friendly too and knows Miss Brogna.

"They say that Howard Winter and Mr. Martorano have used a telephone that the government says is in Miss Brogna's home and that she obviously has seen them use the telephone; just from the nature of the questions asked, is that that telephone was used for illegal purposes . . . some horse-race-fixing scheme."

Brogna's counsel then went on to argue that if Brogna acknowledged overhearing Winter and Martorano using her phone for gambling purposes or overhearing something illegal being discussed, she could possibly incriminate herself as an aider and abettor or for misprision of a felony, or under "thousands of state gaming laws."

The government argued, however, that before the court could accept Brogna's fifth amendment claim she must make a further in camera proffer, presumably going beyond the facts so far brought out, to show in what way her testimony would be incriminatory. Brogna responded through her counsel that no such proffer was needed because it was obvious, from the facts already stated, that the claim was justified.

The district court sided with the government about the need for an in camera proffer, and held a closed session which Brogna and her attorney reluctantly attended. The judge and his stenographer were the only others present. Following this meeting, the court announced its finding that a truthful answer to the questions would not tend to incriminate the witness, also stating,

"there is nothing on the surface of this matter, such as the witness being a leading subject of investigation or having a substantial criminal record, or any other surface indicia, that would enable the court to rule in favor of the witness's position under the Fifth Amendment, absent an in camera conference such as was just held. ²

We hold that the court erred in declining to accept Brogna's claim of privilege. In particular, we believe, contrary to the district court, that "the surface of this matter" was instinct with the likelihood that her answers would tend to incriminate her notwithstanding that she was not a target or a person with an evident criminal record. ³

The privilege against self-incrimination extends not only to answers that would in themselves support a conviction but "likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). Since Hoffman, it has become clear that the claim of privilege may be based on the fear of state as well as federal prosecutions. Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). It does not require extended analysis to show that if Brogna acknowledges that the alleged ringleader in a nationwide criminal syndicate has been frequently ⁴ conversing from her home over the telephone, in conversations otherwise proven to have been with criminal associates, and for criminal purposes, she is furnishing a link in a chain of evidence that could be used to prosecute her for both federal and state crimes. Her furnishing of her telephone and apartment on a regular basis to highly-placed operatives of organized crime could, with little more, give rise to an inference of knowing participation as an aider and abettor, or co-conspirator, in the violation of federal or state gaming laws.

It is, of course, for the court, not the witness, to decide whether there is a genuine rather than a spurious danger of self-incrimination. Hoffman, 341 U.S. at 486, 71 S.Ct. 814, 818. If it " clearly" appears to the court that the witness is "mistaken" or is advancing his or her claim as a subterfuge, the court should compel the witness to answer. Id. The privilege against self-incrimination must, however, "be accorded liberal construction in favor of the right it was intended to secure." Id. Here the government's own evidence, indicating that leading underworld figures may have conducted their illegal business from her home over an extended period, and the questions themselves, asking Brogna in effect to confirm that fact, satisfied Brogna's burden. We believe the court should have sustained her claim without more.

The government's contrary argument, which relies heavily on the old case of Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198 (1917), urges an approach inconsistent with Hoffman and all the cases that have followed it. The grand jury has, of course, a right to compel testimony, but it cannot be seriously contended that that right either overshadows or weakens the fifth amendment privilege. Fortunately for the government, immunity statutes are available to relieve it from the bind that might occur in situations such as this. None of the cited post-Hoffman cases seem to us to come close to permitting the enforcement of testimony from one in so potentially compromising or compromised a position as Brogna. While in United States v. Mandujano, 425 U.S. 564, 573, 96...