Cook County Grand Jury, In re

Decision Date21 March 1983
Docket NumberNos. 82-1178,82-1179,s. 82-1178
Citation69 Ill.Dec. 427,447 N.E.2d 862,113 Ill.App.3d 639
Parties, 69 Ill.Dec. 427 In re the EXTENDED MARCH 1982 COOK COUNTY GRAND JURY, NO. 10. The PEOPLE of the State of Illinois, Petitioner-Appellee, v. Constantine August TADDEO and Joseph Bronge, Respondents-Witnesses-Appellants.
CourtUnited States Appellate Court of Illinois

Santo J. Volpe and Allan A. Ackerman, Chicago (Ackerman & Egan, Ltd., Chicago), of Chicago, for respondents-witnesses-appellants.

Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat, Gregory G. Thiess and Lawrence R. Stasica Asst. State's Attys., Chicago, of counsel), for petitioner-appellee.

O'CONNOR, Justice:

This is an appeal from an order of the circuit court of Cook County holding Constantine August Taddeo and Joseph Bronge, two grand jury witnesses (hereinafter referred to as "defendants"), in contempt of court for refusing to testify before the grand jury. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.

Defendants were called before the Extended March 1982 Cook County Grand Jury investigating the disappearance of Salvatore Pullia. Both asserted their Fifth Amendment privilege against self-incrimination and refused to answer the questions asked of them. On April 30, 1982, the State requested a grant of immunity (Ill.Rev.Stat.1981, ch. 38, par. 106-1) for each witness. Both were granted immunity pursuant to court order.

Appearing before the grand jury with grants of immunity, both again refused to answer the questions put to them. Instead, they objected, stating:

"I respectfully refuse to answer the questions because your inquiry is based upon illegal electronic surveillance obtained by violation of Title 18 of the United States Code, Section 2510 and the following sections and in particular Section 2515 and hereby make a claim according to Title 18, United States Code, Section 3504."

On May 12, 1982, the State presented petitions and affidavits to the circuit court for a rule to show cause for each defendant. They replied both in writing and at the hearing for contempt that they were not in violation of the circuit court's immunity order because the grand jury questions were based on illegal electronic surveillance. (18 U.S.C. §§ 2510 et seq.; 18 U.S.C. § 3504.) The State argued their contentions were "bare claims" not sufficient to place a burden on the State to disprove the contentions of illegal surveillance. The assistant State's Attorney also stated:

"On the other hand, your Honor, I can say under oath as an officer of the Court, if need to be sworn in, the State has not applied for nor have they used any eavesdropping devices to obtain any evidence which is the basis for any of the questions for either [defendant].

"The State has not been provided with any information from the Federal Government that they have obtained by electronic eavesdropping or wiretapping which is the basis for any of our questioning of [the defendants]."

During the hearing, counsel for defendants acknowledged that the claims were not substantiated, but that they could be verified.

The circuit court found the State's in-court oral statement adequately met defendants' claim of illegal electronic surveillance. It then held defendants to be in contempt of court unless they purged themselves by testifying before the grand jury. Upon the representations of counsel that defendants would stand on their claims, the circuit court found them in contempt of court.

An oral motion to vacate the orders on immunity and contempt, the petitions for rule to show cause order and to quash the grand jury subpoenas was denied. Enforcement of the order of contempt was stayed pending this appeal.

Two issues are raised by defendants: (1) whether the statutory scheme for granting immunity in Illinois to "material witnesses" is constitutional; and (2) whether defendants were properly held in contempt of court where the State made an oral, in-court denial of the witnesses' claims of illegal electronic surveillance.

Defendants argue that section 106-1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 106-1), granting immunity to a "material witness", is unconstitutional, violating the Fifth Amendment of the United States Constitution and article I, sections 2 and 10 of the Illinois Constitution. It is argued that the granting of immunity to a "material witness" under this statute is not coextensive with the privilege against self-incrimination. (See, Kastigar v. United States (1972), 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212.) Defendants' position is that the constitutional privilege available to a "person" is not the same as the statutory grant of immunity to a "material witness."

The immunity statute, section 106-1, provides:

"In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce."

The effect of this grant of immunity is stated in section 106-2 (Ill.Rev.Stat.1981, ch. 38, par. 106-2):

"Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence * * *."

In Kastigar, the Supreme Court determined that the federal immunity statute (18 U.S.C. §§ 6001-6005) was coextensive with the Fifth Amendment, stating (406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212):

" * * * While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. * * *."

It is clear that a grant of transactional immunity is provided for by the language of sections 106-1 and 106-2. (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill.2d 546, 6 Ill.Dec. 888, 363 N.E.2d 835.) A grant of immunity under these statutes, then, results in complete protection against prosecution for the witness. The Illinois immunity statute is, therefore, coextensive with both the United States and Illinois Constitutions.

The use of the term "material witness" does not, as defendants appear to argue, disturb the scope of the immunity granted under the statute. Anyone receiving immunity pursuant to this statute will have transactional immunity, protection broader than that required by the Fifth Amendment. (Kastigar v. United States.) Also, there is no violation of due process and equal protection (see, Ill. Const., art. I, § 2) in distinguishing between a "material" or "immaterial" witness. The former has the protection of the statutory immunity, while the latter is protected by the exercise of the Fifth Amendment privilege against self-incrimination.

Defendants further argue that section 106-1 is vague and constitutionally defective because it does not define what constitutes a "material witness" and how such a determination is made. We disagree.

A plain reading of section 106-1 reveals that it is the court making the order of immunity that determines a witness is "material." (Cf. In re Adams (1976), 64 Ill.2d 269, 1 Ill.Dec. 55, 356 N.E.2d 55; In re Grothe (1965), 59 Ill.App.2d 1, 208 N.E.2d 581; Ill.Rev.Stat.1981, ch. 38, par. 156-2 ("material witness" in the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings).) In discussing the production of documents subject to a grand jury's subpoena duces tecum, our supreme court in People v. Dorr (1970), 47 Ill.2d 458, 265 N.E.2d 601, cert. denied, 402 U.S. 929, 91 S.Ct. 1527, 28 L.Ed.2d 863, quoted a pertinent statement made in People v. Allen (1952), 410 Ill. 508, 517, 103 N.E.2d 92, cert. denied, 344 U.S. 815, 73 S.Ct. 9, 97 L.Ed. 635 (47 Ill.2d 458, 462-63, 265 N.E.2d 601):

" * * * 'In litigated cases, materiality can be fixed with a relatively high degree of precision by reference to the issues formulated in the pleadings. No standard of comparable certainty exists with respect to an inquiry by a grand jury. The very purpose of such an inquiry is to uncover matters previously unknown to the investigating agency. It is not necessary that a "cause" or "specific charge" be pending before the grand jury as a condition to its right to command the production of documents. (Hale v. Henkel, 201 U.S. 43 [26 S.Ct. 370, 50 L.Ed. 652]; Wilson v. United States, 221 U.S. 361 [31 S.Ct. 538, 55 L.Ed. 771].) Such a requirement, as pointed out in Hale v. Henkel, would sharply curtail the historic function of the grand jury. "[R]elevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry." Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 [66 S.Ct. 494, 90 L.Ed. 614].

" 'Unless the effectiveness of the grand jury in the administration of criminal law is to be drastically impaired, the most that can be required as a standard of materiality is as precise a statement of a subject under investigation as the circumstances permit.' "

In the case at bar, the trial court in camera examined the grand jury foreman before making a determination that defendants were indeed "material witnesses." In response to this examination, the foreman stated defendants were material to the grand jury investigation and that they were necessary for the conduct of the proceedings. Without delving into the exact nature of the grand jury's investigation, the trial court was thus able to determine the importance of these witnesses to that investigation. We think the procedure used by the trial court was within the proper exercise of its duties.

Defendants next argue that they were...

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