In re Grand Jury Investigation

• Decision Date: 07 August 1973
• Docket Number: Misc. No. 974 MCD.
• Citation: 362 F. Supp. 870
• Parties: In re GRAND JURY INVESTIGATION. In the Matter of Amerigo FERRANTI.
• Court: U.S. District Court — Middle District of Pennsylvania

362 F. Supp. 870

In re GRAND JURY INVESTIGATION In the Matter of Amerigo FERRANTI.

Misc. No. 974 MCD.

United States District Court, M. D. Pennsylvania.

August 7, 1973.

Thomas J. Hanlon, Scranton, Pa., for Amerigo Ferranti.

Clarence J. Nickman, Richard M. Walker, Attys., Dept. of Justice, Antitrust Div., Philadelphia, Pa., Paul J. Killion, Asst. U. S. Atty., Harrisburg, Pa., for the United States.

MEMORANDUM OPINION AND ORDER

HERMAN, District Judge.

At issue before this court is the government's request that Amerigo Ferranti be held in contempt for failure to answer questions before a federal grand jury.

Ferranti is a beer distributor doing business in Scranton, Pennsylvania. On March 15, 1973, two attorneys attached to the Antitrust Division, Middle Atlantic Division, Department of Justice, visited Ferranti at his office. The discussion lasted approximately one hour, after which the attorneys departed. Mr. Ferranti signed no written statement, nor was he apparently asked to do so.

Subsequently, Ferranti was subpoened to appear before a federal grand jury in Harrisburg investigating possible violations of federal antitrust laws with regard to the beer industry in his business locale. Mr. Ferranti declined to answer questions by counsel for the government and by the foreman, standing on his Fifth Amendment right against self-incrimination. Thereafter, upon application of the United States, the court granted Ferranti use immunity pursuant to 18 U.S.C. § 6003.¹ Ferranti was returned to the grand jury and again refused to testify. As a result of Ferranti's refusals, the government has moved for a finding of contempt under 28 U.S.C. § 1826.² Section 1826 provides for punishment for a recalcitrant witness.

Counsel for Ferranti alleges the following arguments on behalf of his client:

1. That 18 U.S.C. § 6003 is unconstitutional requiring the convening of a three-judge panel to enjoin its application;

2. The March 15 interview violated Ferranti's Fifth and Sixth Amendment rights;

3. That as a result of the alleged violations of Ferranti's constitutional rights, any grand jury testimony would be "tainted" and may not be used at all by the government.

The court cannot agree with these arguments.

I.

The witness requests a temporary restraining order staying the grant of immunity or any citation of contempt for refusal to answer grand jury questions. The remedies sought by Ferranti require a motion to convene a three-judge court.³

The government urges upon the court a dismissal of the petition on the grounds that it fails to seek to enjoin an act of Congress as required by 28 U.S.C. § 2282. The court cannot agree. Taking the petition most favorable to Mr. Ferranti, it clearly asks that the "order granting immunity . . . be temporarily restrained and stayed." The grant of immunity for Mr. Ferranti was made pursuant to 18 U.S.C. § 6003. Section 2282 expressly forbids a single district judge from enjoining the application of a federal statute. It seems implicit therefore that the petition seeks the sort of relief requiring this court to consider the substantiality of the constitutional issues raised by Mr. Ferranti.

The question of a three-judge panel must be dispensed with concomitantly with the issue of the constitutionality of 18 U.S.C. § 6003. In order to convene a three-judge court it must be clear that the moving party has raised a "substantial" constitutional question. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967); Mellinger v. Laird, 339 F. Supp. 434 (E.D.Pa.1972); O'Hair v. United States, 281 F.Supp. 815 (D.C. 1968); Harlan v. Pa. R.R., 180 F.Supp. 725 (W.D.Pa.1960).

A lack of a "substantial" constitutional argument is generally said to appear where its unsoundness clearly results from previous Supreme Court decisions or where it is obviously without merit. California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Herald Co. v. Harper, 410 F.2d 125 (8th Cir. 1969).

The issue is not whether this court considers § 6003 to be constitutional, but whether the attack upon it is substantial. If this court concludes that the witness's constitutional arguments are insubstantial we must dismiss the petition for injunctive relief. Herald Co. v. Harper, supra; Stix Friedman & Co. v. Coyle, 340 F.Supp. 4, 6 (E.D.Mo.1972).

The thrust of Ferranti's attack on 18 U.S.C. § 6003 is essentially that it eliminates Fifth Amendment rights without due process of law.

The petitioner concedes, in the face of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), that use immunity is coextensive with the scope of the Fifth Amendment privilege against self-incrimination and therefore sufficient to compel testimony over such a claimed privilege.

Petitioner contends, however, that the statute allows a non-judicial functionary (i. e., the United States Attorney) to automatically gain immunity without probable cause and thereafter violate the witness's right "to be let alone." Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Moreover, according to the petitioner, the witness's right of privacy is violated since the statute countenances "a governmental invasion of the most secret and intimate reaches of an individual's mind."

This court sees glaring defects in the attack on § 6003 which irreparably deprive it of the needed substantiality. The assertion of a right "to be let alone" is no more than an oblique attempt to destroy the entire concept of immunity. The Supreme Court has consistently concluded that there is no constitutional right to invoke the Fifth Amendment where immunity has been granted. Kastigar, supra; Ullman v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). To provide a flat right to witnesses granted immunity to assert a right of privacy would totally cripple even the broadest of transactional immunity.⁴

"Some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.

"But, aside from exceptions and qualifications — and none such is asserted in the present case — the witness is bound not only to attend but to tell what he knows in answer to questions framed for the purpose of bringing out the truth . . ..

"He is not entitled to urge objections of incompetency or irrelevancy . . . for this is no concern of his (citation omitted) . . ..

"He is not entitled to set limits to the investigation that the grand jury may conduct." 250 U.S., 281-282, 39 S.Ct., 471 (Emphasis added)

Here petitioner has refused to answer even the preliminary question concerning his business address. This blanket refusal squarely places him in the same category as BLAIR, failing to assert any specific privileges.⁵

This court is of the opinion that petitioner's Fifth Amendment attack on § 6003 is insubstantial in view of the line of decisions contrary to it. California Water Service Co., supra.

The petitioner's second objection to § 6003 is equally without merit. He contends that the statute permits the United States Attorney (with Justice Department approval) to obtain a grant of immunity as a matter of right (see n. 1, supra). The petitioner's chief complaint regarding this "unfettered discretion" is directly tied to his assertion that the statute is violative of the Constitution.

The witness cites no authority but argues that the power to destroy the right of privacy should not rest with the Department of Justice. The argument erroneously presumes a Fifth Amendment right over and above that dealt with in Kastigar, supra.

In In re Grand Jury Witnesses Bursey and Presley, 322 F.Supp. 573, 576 (N.D. Cal.1970), the court said:

"The Grand Jury does not need to have probable cause to investigate; rather its function is to determine if probable cause exists. And if probable cause is not required to investigate, it follows that probable cause is not required to make the preliminary showing necessary to call a witness whose testimony may shed light on criminal activity which the grand jury must investigate if the national interest is to be effectively served. . . . Only the grand jury can properly decide what may be useful to such an investigation . . . ." (Emphasis in original)

It is axiomatic that the United States Attorney is merely the agent of the grand jury insofar as he is the individual who seeks immunity on behalf of the grand jury. To compel him to have probable cause would be an indirect method of requiring probable cause of a grand jury. This the court will not do.

In short, the petitioner's claim does not rise to the level of constitutional magnitude and fails as "obviously without merit." California Water Service Co., supra; Herald Co., supra.

II.

The petitioner asserts that his Fifth and Sixth Amendment rights were abridged during the March 15 meeting which occurred in Mr. Ferranti's office. As a result the court conducted a hearing to determine the factual events surrounding the meeting. The two government attorneys (Messrs. Walker and Nickman) and Mr. Ferranti each testified as to the occurrences. The significance of the alleged violations is discussed in Part III.

The primary issue as this court views it, is whether the meeting in Ferranti's office was custodial in nature so as to require a Fifth Amendment warning against self-incrimination and whether the meeting constituted a "critical stage" requiring counsel's presence.

Even taking the disputed facts most favorable to Mr. Ferranti, this court is of the opinion that he has failed to reveal any transgressions of constitutional magnitude.

A. Fifth Amendment Rights

Two primary allegations by Mr. Ferranti compose his major assertion that he should have been given his...