IN RE GRAND JURY FOR NOVEMBER, 1974 TERM, Misc. Cr. No. 203.

• Decision Date: 14 June 1976
• Docket Number: Misc. Cr. No. 203.
• Citation: 415 F. Supp. 242
• Parties: In re GRAND JURY FOR the NOVEMBER, 1974 TERM.
• Court: U.S. District Court — Western District of New York

415 F. Supp. 242

In re GRAND JURY FOR the NOVEMBER, 1974 TERM.

Misc. Cr. No. 203.

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

June 14, 1976.

Doyle, Diebold, Bermingham & Gorman, Buffalo, N.Y. (Vincent E. Doyle, Jr., Buffalo, N.Y., of counsel; Mark J. Mahoney, Buffalo, N.Y., on the Memorandum and Supplemental Memorandum), for petitioner.

Richard J. Arcara, U.S. Atty., Buffalo, N.Y. (Theodore J. Burns, Buffalo, N.Y., of counsel), for the Government.

CURTIN, Chief Judge.

On May 21, 1976, the attorney for petitioner Kevin Brinkworth filed a motion seeking the discharge of this grand jury or, in the alternative, a stay of the grand jury proceedings so that the court may examine the transcript and direct a hearing concerning the manner in which the grand jury investigation has been conducted. The attorney's affidavit in support of the motion alleges that the proceedings before the grand jury "have been contaminated by several incidents which demonstrate that this grand jury has been the object of undue influence by the Assistant United States Attorneys involved." In addition, the petitioner contends that the grand jury's term has expired and that it sits without legal authority.

During the grand jury proceedings, some witnesses were told that their testimony was unbelievable. Witnesses were asked about their social relationship with Mr. Brinkworth, whether or not they had had any discussions with him following the receipt of subpoenas and whether he assisted in the retaining of attorneys for them. Petitioner's attorney also alleges that threats were made to potential witnesses or families and that the questioning was carried on in an "inquisitorial fashion." In addition, the long duration of the proceedings is cited as further evidence that the proceedings have been improperly conducted to harass Mr. Brinkworth. These allegations were made in the general fashion just stated. No grand jury witnesses were named.

The United States Attorney has filed a responding affidavit and a memorandum of law, and the petitioner's counsel has had an opportunity to file a reply memorandum. In addition, the court has heard oral argument in chambers from petitioner's counsel in support of his application.

Since this matter is pending before the grand jury, it is questionable whether the petitioner has standing to bring such a motion. None is provided for in the rules or statutes. Nevertheless, the court has a responsibility to oversee the work of grand juries and, if particular facts are called to its attention where serious abuse is occurring, there is no doubt that the court would have the right and the responsibility to see to it that fair procedures are followed in grand jury presentations. See Application of Iaconi, 120 F.Supp. 589 (D.Mass.1954). In this case, however, the challenge to the work of the grand jury is made on an attorney's affidavit only and even that fails to set forth in detail any improper conduct by the United States Attorney in presenting witnesses to the jury. It would appear that under the circumstances the application of the petitioner is premature. In re Grand Jury Investigation (General Motors Corp.), 32 F.R.D. 175, 180-181 (S.D.N.Y.1963), appeal dismissed sub nom. In re Grand Jury Investigation of Violations of 18 U.S.C. § 1621 (Perjury), 318 F.2d 533 (2d Cir. 1963). The Seventh Circuit held In re April 1956 Term Grand Jury, 239 F.2d 263, 273 (7th Cir. 1956), that a person who seeks to challenge the regularity of grand jury proceedings should "be required to await the return of said indictment before having a hearing in the trial court on his contentions that his constitutional rights were violated."

The Supreme Court has noted on numerous occasions that the grand jury must be accorded wide latitude to inquire into violations of criminal law. See United States v. Calandra, 414 U.S. 338 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, especially at 701-702 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The response of the United States Attorney indicates that over 100 witnesses have appeared before the grand jury and that the transcript of the testimony runs into thousands of pages. Numerous exhibits have also been received by the grand jury.

It is apparent from a reading of the affidavit of the petitioner and the response of the United States Attorney...