In re New Haven Grand Jury

• Decision Date: 21 February 1985
• Docket Number: H 83-62.,Misc. Civ. No. H 85-11
• Citation: 604 F. Supp. 453
• Parties: In re NEW HAVEN GRAND JURY. In re Anthony R. MARTIN-TRIGONA, Debtor.
• Court: U.S. District Court — District of Connecticut

604 F. Supp. 453

In re NEW HAVEN GRAND JURY In re Anthony R. MARTIN-TRIGONA, Debtor.

Misc. Civ. Nos. H 85-11, H 83-62.

United States District Court, D. Connecticut.

February 21, 1985.

Anthony R. Martin-Trigona, Danbury, Conn., pro se.

Albert S. Dabrowski, Asst. U.S. Atty., Hartford, Conn., for the United States.

RULING ON CORRESPONDENCE ADDRESSED TO THE CLERK REGARDING THE TRANSMISSION OF A CONFIDENTIAL COMMUNICATION TO A GRAND JURY

JOSÉ A. CABRANES, District Judge:

The question presented is whether an individual has a right to communicate with a federal grand jury, absent a request from the grand jury, without the approval of the United States Attorney or a judge. It is a question faced with increasing frequency by courts confronted by a variety of persons who profess to lack confidence in the judgment of prosecutors and judges and who believe themselves to be the most appropriate instruments for the vindication of the interests of justice. I conclude that, as a general proposition, such private prosecutorial initiatives are not permitted by law; in any event, they are wholly unwarranted in the circumstances presented here.

Introduction

On May 24, 1984, the Office of the Clerk at the New Haven Seat of Court conveyed to me a letter dated May 16, 1984 and a sealed enclosure written by a notorious pro se litigant¹ and addressed to the Clerk. Captioned "Re: UNITED STATES GRAND JURY FOR THE DISTRICT OF CONNECTICUT SITTING AT NEW HAVEN," the text of the letter requested the Clerk to convey the sealed enclosure to the New Haven grand jury outside the presence of the United States Attorney, and admonished the Clerk not to "tamper" with the sealed enclosure or to turn it over to the United States Attorney.² The wording of the letter to the Clerk, coupled with this correspondent's history of hostility to judges here and elsewhere,³ makes it appear that he also wishes to avoid judicial scrutiny of his communication with the grand jury.

By order entered May 29, 1984, I invited the United States Attorney to comment on this correspondence. In response, the United States Attorney took the position that the court should not convey the documents in question to the grand jury until requested to do so by its foreperson. See Response of the United States Attorney (filed June 6, 1984) ("Response").

A consideration of applicable law and the full record of these proceedings yields the inescapable conclusion that neither a grand jury target nor a private complainant⁴ has a right to communicate directly, in writing or otherwise, with a federal grand jury without the approval of a prosecutor or judge. There is no constitutional, statutory, or common law right to communicate directly with a federal grand jury without the participation of a prosecutor or judge, and attempts to transmit written communications directly to a grand jury may constitute a crime.

In any event, because this correspondent has a well-documented history of persecuting innocent persons through abuse of legal processes, he may not appear before a federal grand jury in this District until and unless he is invited or ordered by a grand jury to do so and he may not have communications conveyed to a grand jury without the approval of the United States Attorney or the court.⁵

I.

It is settled that a target of a grand jury investigation—that is, a person whose indictment the grand jury is considering—does not have a right to appear as a witness before the grand jury. United States v. Ciambrone, 601 F.2d 616, 622-623 (2d Cir.1979); United States v. Thompson, 144 F.2d 604, 605 (2d Cir.) (L. Hand, J.) ("the practice of a target of an investigation appearing before a grand jury was utterly unknown at common law ... Although grand juries have in recent times occasionally invited persons, whose conduct they are examining, to appear, they are never obliged to do so."), cert. denied, 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944); see also United States v. Salsedo, 607 F.2d 318, 319 (9th Cir.1979); United States v. Smith, 552 F.2d 257, 261 (8th Cir.1977); United States v. Donahey, 529 F.2d 831, 832 (5th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Duke v. United States, 90 F.2d 840, 841 (4th Cir.), cert. denied, 302 U.S. 685, 58 S.Ct. 33, 82 L.Ed. 528 (1937).

It apparently is the policy or practice of some federal prosecutors to afford some targets or potential targets of grand jury investigations an opportunity to testify before the grand jury prior to the grand jury's determination whether to indict. See, e.g., Response at 4-5 (description of access to New Haven grand jury that might be afforded to a potential target of that grand jury by the Office of the United States Attorney for the District of Connecticut). Whatever the merits of such policies or practices, it is clear that they are entirely within the discretion of the prosecutor and are in no sense required by law.

If, as the cases cited above make clear, a target of an investigation has no right to appear before the grand jury—to present evidence, to submit his views, or to bolster his credibility—it is reasonable to conclude that a target has no right to convey that evidence or those views to the grand jury in writing or to attempt to bolster his credibility with the grand jury through a written communication in lieu of a personal appearance.

Indeed, the initiation by a private party of written communications with a grand jury, with the exception of a request for an opportunity to appear, may constitute a crime. See 18 U.S.C. § 1504.⁶ The statute on jury tampering by written communications is instructive because "the purpose of 18 U.S.C. § 1504 was to prevent anyone from attempting to bring pressure upon or to intimidate a grand juror by a written communication with that intent." United States v. Smyth, 104 F.Supp. 283, 299 (N.D.Cal.1952).⁷ The statute prohibits written communications addressed to the grand jury as a body and intended to be seen by all of the jurors, as well as those addressed to an individual juror. See Duke v. United States, supra, 90 F.2d at 841 (target of a grand jury investigation convicted under predecessor statute to 18 U.S.C. § 1504 for transmitting a letter to grand jury foreman with purpose of "getting before the grand jury his contentions and unsworn statements").

It is evident that a potential target of a grand jury investigation would have no greater right to communicate in person or in writing with the grand jury than would an actual target, since the interests of a potential target would be that much more remote. Since a target would have no right to communicate with the grand jury, it follows that a potential target also would have no right to communicate with the grand jury.

II.

A complainant or informer has no greater right to appear before a grand jury or to communicate directly with it in writing than does a target or potential target of a grand jury.⁸See People v. Parker, 397 Ill. 305, 74 N.E.2d 523, 525-526 (1947) (per curiam) (rejecting First Amendment challenge to a state court criminal contempt conviction for mailing letter to grand jury foreman alleging a conspiracy between a newspaper, prosecutors and politicians) ("Parker II"),⁹aff'd per curiam by equally divided court, 334 U.S. 816, 68 S.Ct. 1082, 92 L.Ed. 1747 reh'g denied, 334 U.S. 840, 68 S.Ct. 1184, 92 L.Ed. 1764 (1948);¹⁰United States v. Kilpatrick, 16 F. 765, 769, 771 (W.D.N.C.1883) (there is "no right to communicate private information to a grand jury for the purpose of obtaining a presentment" and it is a crime for "any individual, acting as a volunteer, to approach or communicate with the grand jury in reference to any matter which either is or may come before it."); Charge to Grand Jury, 30 F.Cas. 992, 994-995 (C.C.D.Cal.1872) (No. 18,255) (Field, Circuit Justice).¹¹

As noted, direct communication with a grand jury may be a crime under 18 U.S.C. § 1504. Describing the frequency of private communications to the grand jury "filled with malignant and scandalous imputations" against judges and others, and the damage to the grand jury system that such communications cause, Justice Field described the then-recently-enacted predecessor to 18 U.S.C. § 1504 as intended to secure the grand jury "from intimidation or personal influence of every kind." Charge to Grand Jury, supra 30 F.Cas. at 995. He instructed the grand jury to turn over such communications to the prosecutor for use against the originators. Id.

III.

It has been observed that the grand jury functions both as "a sword and a shield of justice." United States v. Cox, 342 F.2d 167, 186 (5th Cir.) (Wisdom, J., concurring), cert. denied sub. nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). See generally United States v. Calandra, 414 U.S. 338, 342-346, 94 S.Ct. 613, 617-19, 38 L.Ed.2d 561 (1974). As a sword, the function of the grand jury is, in the words of Professor Lester B. Orfield, "to bring to trial persons accused of crime upon just grounds." Orfield, The Federal Grand Jury, 22 F.R.D. 343, 394 (1958). As a shield, the grand jury's function is "to protect persons against unfounded or malicious prosecutions by insuring that no criminal proceeding will be undertaken without a disinterested determination of probable guilt." Id.

Although Professor Orfield has noted that "the investigative or inquisitorial function has been called the more important," id., the grand jury's shield function remains significant. Indeed, it has been said that "the Grand Jury earned its place in the Bill of Rights by its shield, not by its sword." United States v. Cox, supra, 342 F.2d at 186 (Wisdom, J., concurring). The grand jury remains

a primary security to the innocent against hasty, malicious and oppressive prosecution ... standing between the accuser and the accused ... to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill

...