In re Applic. of U.S. for Material Witness Warrant

• Decision Date: 11 July 2002
• Docket Number: No. 01 M. 1750(MBM).,01 M. 1750(MBM).
• Citation: 213 F.Supp.2d 287
• Parties: In re the APPLICATION OF the UNITED STATES FOR A MATERIAL WITNESS WARRANT, Pursuant to 18 U.S.C. § 3144, for John Doe.
• Court: U.S. District Court — Southern District of New York

213 F.Supp.2d 287

In re the APPLICATION OF the UNITED STATES FOR A MATERIAL WITNESS WARRANT, Pursuant to 18 U.S.C. § 3144, for John Doe.

No. 01 M. 1750(MBM).

United States District Court, S.D. New York.

July 11, 2002.

James F. Comey, United States Attorney for the Southern District of New York, Christopher Morvillo, Christine Chung, Celeste L. Koeleveld, Robin L. Baker, Assistant U.S. Attorneys, New York City.

Neil S. Cartusciello, Drinker, Biddle & Reath, New York City, Attorney for Witness.

OPINION AND ORDER

MUKASEY, Chief Judge.

John Doe,¹ who was initially in the custody of the Immigration and Naturalization Service in another state and subject to an order of deportation, was transferred to the custody of the Department of Justice pursuant to a material witness warrant issued under 18 U.S.C. § 3144 (2000), in aid of a grand jury subpoena. He has moved to quash the warrant, and asks that the deportation order entered against him be enforced forthwith. Alternatively, he asks that the government be barred from calling him before the grand jury, and that his deposition be taken pursuant to section 3144 and Federal Rule of Criminal Procedure 15(a). He also raises issues relating to the conditions of his detention.

Doe gives three reasons to quash the warrant. He relies principally on the reasoning and holding in United States v. Awadallah, 202 F.Supp.2d 55 (S.D.N.Y. 2002), to the effect that that statute does not apply to grand jury witnesses. Second, he contends that the government (i) violated his Fifth Amendment rights when it brought him from another jurisdiction to New York, (ii) was required under section 3144 to take his deposition rather than bring him to New York to appear before a grand jury, and (iii) should be required to take his deposition now. Third, he contends that he does not possess material information, and therefore has not been properly subpoenaed.

For the reasons set forth below, I respectfully decline to follow the reasoning and holding in Awadallah, and accordingly deny Doe's motion to quash the subpoena based on that reasoning and holding. Further, as set forth below, Doe's claim that his rights were violated is without merit, and his motion to compel the taking of his deposition is denied. Still further, and also as set forth below, Doe is incorrect when he argues that he does not possess material information. The issues he raises as to the terms of his confinement will be addressed separately after the views of the Bureau of Prisons have been heard.

I.

A. Section 3144—Text and Context

The Court in Awadallah found 18 U.S.C. § 3144 facially ambiguous, but concluded from its structure and legislative history that it was not intended to apply to grand jury witnesses. The Awadallah Court dismissed the analysis of the only appellate case to treat the issue squarely, Bacon v. United States, 449 F.2d 933 (9th Cir. 1971)—which found that a predecessor statute did apply to grand jury witnesses —as poorly reasoned dictum. Further, the Awadallah Court suggested that if the statute were to be read to permit detention of grand jury witnesses, it would violate the Fourth Amendment.

Prior to Awadallah, the only authority bearing directly on the reach of the statute was the statute itself, together with whatever recognized principles were available to interpret it, and Bacon. The statute reads as follows:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

18 U.S.C. § 3144.

As discussed more fully below, the relevant language in what is now section 3144 was interpreted in Bacon to include grand jury witnesses, and that language was reenacted as part of the current statute. A well recognized canon of statutory construction requires that a court deem Congress both to have been aware of such existing appellate authority, and to have intended reenacted language to mean what that authority said it meant. Here, even beyond that interpretive canon, there is explicit evidence that Congress, or at least a relevant committee of Congress and those legislators who were aware of that committee's report, was aware of Bacon's holding that material witness warrants include warrants for grand jury witnesses. Further, as discussed more fully below, there is substantial authority that a statute so applied does not offend the Fourth Amendment, and additional authority showing that the statute has been applied for many years to grand jury witnesses. Awadallah is notably devoid of any reference to that canon, that evidence, or that authority.²

As mentioned, the only appellate case to rule squarely on whether section 3144 should be read to apply to grand jury witnesses is Bacon, which held that a predecessor to the current statute did so apply. That predecessor statute, then designated 18 U.S.C. § 3149 (1982), differed from the current statute mainly in its first sentence. Set forth below is the first sentence of that predecessor statute, with the differences from the current statute noted in brackets:

If it appears by affidavit [rather than "from an affidavit filed by a party"] that the testimony of a person is material in any criminal proceeding [rather than "a criminal proceeding"], and if it is shown that it may become impracticable to secure his presence [rather than "the presence of the person by subpoena"], a judicial officer shall impose conditions of release pursuant to section 3146 [omitting explicit authority to arrest contained in the current statute—"a judicial officer may order the arrest of the person"].

Compare 18 U.S.C. § 3149 (1982), with 18 U.S.C. § 3144 (2000).

Like the movant here, petitioner in Bacon argued that a grand jury proceeding is not a "criminal proceeding" within the meaning of the statute. The Bacon Court noted that the enabling statute for the Federal Rules of Criminal Procedure granted to the Supreme Court the authority to prescribe rules pertaining to "any or all proceedings prior to and including verdict," Bacon, 449 F.2d at 939 (quoting 18 U.S.C. § 3771) (alteration in original) (internal quotation marks omitted), and found that the quoted phrase "reaches far enough to include grand jury investigations," id. The Court found it "incongruous to say that a proceeding before the body charged by the Constitution with initiating criminal prosecutions does not amount to a proceeding in a criminal case prior to verdict." Id. at 939-40. In support of this conclusion, the Court noted that the protection against self-incrimination in a criminal case had been extended by the Supreme Court to a grand jury proceeding. Id. at 940 (citing Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892)).

Further, Bacon found that the Supreme Court had "exercised to the fullest" the authority granted in the enabling legislation, based in part on Rule 2, which states that "[t]hese rules are intended to provide for the just determination of every criminal proceeding." Id. at 940 (quoting Fed. R.Crim.P. 2) (alteration in original) (internal quotation marks omitted). The Court noted that the rules include the core authority for summoning and protecting the deliberations of grand juries—Rule 6—as well as Rule 17, which governs issuance of subpoenas both for trial and for appearance before a grand jury. Id. The Court apparently reasoned that inasmuch as the phrase "criminal proceeding" as used in the Federal Rules of Criminal Procedure includes a grand jury proceeding—because the rules themselves govern such a proceeding —so too would the same phrase in the statute include a grand jury proceeding.

The Bacon Court rejected the apparently contrary logic of the majority in United States v. Thompson, 319 F.2d 665 (2d Cir. 1963), a case that held, over a dissent by Judge Kaufman, that the statute authorizing the issuance of subpoenas in criminal proceedings to witnesses outside the United States, 28 U.S.C. § 1783, did not apply to subpoenas in grand jury proceedings. Instead, the Bacon Court embraced the argument of the dissent in that case "that the courts `should be hesitant to attribute to Congress an intention to promulgate a statute so designed that federal law enforcement agencies can be frustrated by the mere withdrawal beyond our territorial limits of individuals whose testimony is indispensable to the securing of a criminal indictment.'" Bacon, 449 F.2d at 940 (quoting Thompson, 319 F.2d at 671 (Kaufman, J. dissenting)).

The Bacon Court concluded that because the Rules of Criminal Procedure as a whole are broad enough to encompass a grand jury proceeding, the phrase "criminal proceeding" in Federal Rule of Criminal Procedure 46(b) (repealed 1972), which permitted a court to fix bail for a material witness,³ and the same phrase in Section 3149, must include grand jury proceedings as well.

The Bacon Court declined to rule on the constitutionality of arrest and detention of material witnesses because the constitutional issue had been presented without citation to any specific constitutional provision or case authority, but rather "in a perfunctory manner, without adequate briefing and argument." Bacon, 449 F.2d at 941. However, the Court went on to hold that the government had not demonstrated that it was impracticable to secure Bacon's...