In re Shead

• Decision Date: 16 June 1969
• Docket Number: Misc. No. 10101.
• Parties: In re Steve SHEAD, Larry Carter, Fred Crawford and Bobby Lee Bush.
• Court: U.S. District Court — Northern District of California

302 F. Supp. 560

In re Steve SHEAD, Larry Carter, Fred Crawford and Bobby Lee Bush.

Misc. No. 10101.

United States District Court N. D. California.

June 16, 1969.

COPYRIGHT MATERIAL OMITTED

Cecil F. Poole, U. S. Atty., San Francisco, Cal., Guy L. Goodwin, Sp. Atty., Dept. of Justice, Washington, D. C., for United States.

Garry, Dreyfus, McTernan & Brotsky, Allan Brotsky, San Francisco, Cal., for cross-movants.

MEMORANDUM FOR ORDER

OLIVER J. CARTER, District Judge.

This matter is before the Court on a motion by the United States for an order granting immunity for several witnesses who were called to testify before the grand jury for the Northern District of California sitting in San Francisco. The witnesses were subpoenaed to appear and did appear on May 14, 1969, to testify before the grand jury. Questions relating to matters involving interstate travel to organize, promote and encourage riots and teaching and demonstrating the use and making of firearms and explosives were then and there asked of these witnesses. They refused to answer such questions on the ground that the answers they give might tend to incriminate them. The United States Attorney for the Northern District of California has now moved this Court to order the witnesses to answer such questions pursuant to the immunity provisions of 18 U.S.C. § 2514.

In answer to the motion, the witnesses have filed a cross-motion seeking declaratory and injunctive relief against enforcement of 18 U.S.C. §§ 2514 (immunity statute), 2101 (anti-riot statute). Included in the cross-motion is the request that the constitutional attacks against these statutes be determined by a three-judge court pursuant to 28 U.S. C. § 2282.

Before discussing some of the issues raised by the witnesses, the nature of the matter before this Court should be emphasized. This proceeding is the result of a motion by the government to order the witnesses to testify at a grand jury investigation. The constitutional issues presented by the witnesses arise in opposition to the granting of such a motion. Thus, a novel situation is presented in which a three-judge court is being requested to enjoin enforcement of federal laws by persons who are already before the Court with standing to raise as a defense, the issues which form the identical basis for their claim for equitable relief. A similar situation would arise in a criminal prosecution in which the defendant files in the very court which is hearing the matter, a cross-complaint for an injunction against the enforcement of the law under which he is being prosecuted, relying on the principles of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Movant and cross-movants have supported their motions with arguments making some reference to the problem of "standing to challenge the constitutionality of the statutes herein." This Court has no doubt that the witnesses have standing to challenge the constitutionality of these statutes. The government's motion is based on 18 U.S.C. § 2514, so the constitutionality of this statute is clearly a proper issue before this Court.

As to 18 U.S.C. § 2101, constitutionality is also a proper issue, since this Court would be powerless to order the witnesses to testify if that statute is unconstitutional on its face. The Constitution is silent on the specific point of Congress' power to provide for ordering persons to testify in federal court or before a federal grand jury after being granted immunity. The Constitution does provide, however, that Congress has power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S.Const. Art. I, § 8, cl. 18. Thus, Congress has the power to grant immunity coextensive with the privilege against self-incrimination if the purpose for which it is necessary and proper, is one properly within the sphere of federal power. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1966). If this purpose suffers from constitutional infirmity, the legislation attempting to grant immunity for that purpose must also fall. Compare Brown v. Walker, 161 U.S. 591, 601, 16 S.Ct. 644, 40 L.Ed. 819 (1896). (Discussion of Congress' power to grant amnesty).

In the case before this Court, the applicable portion of 18 U.S.C. § 2514 provides:

"Whenever in the judgment of a United States attorney the * * * evidence of any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of * * * any of the offenses enumerated in section 2516 or any conspiracy to violate * * * any of the offenses enumerated in section 2516 is necessary to the public interest, such United States attorney * * * shall make application to the court that the witness shall be instructed to * * * produce evidence subject to the provisions of this section * * *. No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence * * *."

The government's application states that the "Grand jury was then and there inquiring into matters involving interstate travel to organize, promote and encourage riots and teaching and demonstrating the use and making of firearms and explosives," when the witnesses refused to testify. Although the government has failed to specify what federal crimes the grand jury was investigating, the application can be interpreted to mean the grand jury was investigating violations of 18 U.S.C. § 2101, which is one of the offenses enumerated in 18 U.S.C. § 2516. If section 2101 is unconstitutional, the purpose for which Congress provided the grant of immunity is void and this Court cannot order the witnesses to testify under a grant of immunity coextensive with the privilege of self-incrimination. Thus, cross-movants are entitled to have the constitutionality of both statutes determined by this Court.

The Court now turns to the question of whether or not the prayer by cross-movants for injunctive relief may be honored in this case, for purposes of determining whether a three-judge court should be convened under 28 U.S.C. § 2282. It is established that if a complaint seeks an injunction restraining the enforcement, operation or execution of an Act of Congress and the constitutional questions raised are not plainly insubstantial, a three-judge court must be convened. Schneider v. Rusk, 372 U. S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963). However, the instant case does not involve solely a complaint seeking declaratory and injunctive relief. To the contrary, this matter is presented by cross-motion in a "quasi-criminal" proceeding arising out of a grand jury investigation. See Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). For this reason, the relief sought is inappropriate. The constitutional issues raised by cross-movants are properly before the Court as defenses to the motion filed by the government. Additional relief by way of a sweeping injunction is outside the province of a court sitting in a criminal matter, in the absence of extraordinary circumstances requiring such relief.

Since this Court has the power to grant equitable relief, it may be argued that cross-movants should be allowed to have their cross-motion treated as a counterclaim for declaratory and injunctive relief against prosecution under section 2101, and against grand jury investigation aided by section 2514. This procedure is provided for in Fed.R.Civ. P. 13(c). There being no counterpart to Rule 13(c) of the Fed.R.Civ.P. in the Fed.R.Crim.P., this Court is of the opinion that such treatment is impermissible.

Even if this Court were to procedurally accept cross-movants' request for injunctive relief, the Court concludes that such relief is inappropriate in this case. There is no showing here that movants would not, nor can it be assumed that they will not acquiesce in the decision of this Court holding the challenged statutes unconstitutional. See Douglas v. City of Jeannette, 319 U.S. 157, 165, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). No irreparable injury would result to cross-movants by this Court deciding the questions at law without granting equitable relief. There being no basis for equitable relief, a three-judge court is unwarranted. As said in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed. 2d 794 (1962):

"When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirement of the three-judge statute." Emphasis added.

An additional reason exists why convening a three-judge court would be improper in this case. The cross-movants' constitutional attack on section 2101 was answered by the Court of Appeals for the Seventh Circuit in National Mobilization Committee to End the War in Viet Nam v. Foran, 411 F.2d 934, (7th Cir. May 27, 1969). The attack on section 2514 is controlled by Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). See also, the full discussions of these issues below. Thus, cross-movants' claim here is plainly insubstantial and fails to meet the requisites for convening a three-judge court. Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed. 2d 762 (1962).

It is, therefore, concluded that cross-movants are not entitled to have their claims heard by a three-judge court. This conclusion is reached without any frustration to and with full consideration of the...