Matter of Wood

• Citation: 430 F. Supp. 41
• Decision Date: 17 February 1977
• Docket Number: No. 77 Cr. Misc. M-11-118.,77 Cr. Misc. M-11-118.
• Parties: In the Matter of subpoenas served upon Bishop Milton L. WOOD et al.
• Court: U.S. District Court — Southern District of New York

430 F. Supp. 41

In the Matter of subpoenas served upon Bishop Milton L. WOOD et al.

No. 77 Cr. Misc. M-11-118.

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

February 4, 1977.

As Amended February 17, 1977.

COPYRIGHT MATERIAL OMITTED

Elizabeth M. Fink, New York City (Daniel L. Meyers, Margaret L. Ratner, Susan V. Tipograph, New York City, of counsel), for respondents Maria Cueto and Raisa Nemikin.

Robert B. Fiske, Jr., U.S. Atty., S.D.N.Y., New York City (Thomas E. Engel, Asst. U.S. Atty., New York City, of counsel), for the United States of America.

Robert S. Potter, W. Peter Burns, Patterson, Belknap & Webb, New York City, for intervenor The Episcopal Diocese of New York.

PIERCE, District Judge.

MEMORANDUM AND ORDER

In April 1975 a grand jury was empaneled in this district to commence an investigation into a series of terrorist bombings of banks, corporate offices, and other buildings located in the City of New York. According to the government, the responsibility for these bombings has been claimed by an organization known as Fuerzas Armadas de Liberacion Nacional Puertorriquena ("FALN"). The term of the April 1975 grand jury expired in October 1976, and on November 9, 1976, the present grand jury was empaneled to continue the investigation of these bombings. According to the subpoenas issued by that body, the grand jury is presently investigating possible violations of 18 U.S.C. § 371, which statute makes it a crime for any person to conspire to commit any offense against the United States.

On November 24, 1976, the grand jury issued a subpoena duces tecum to Bishop Milton L. Wood, Executive for Administration of the Episcopal Church, which subpoena commanded the production of certain documents and records of the Episcopal Church Center located in the City of New York. Among the items requested were all records in the custody of the Bishop relating to Maria Cueto, National Director, and Raisa Nemikin, Secretary, of the National Commission on Hispanic Affairs of the Episcopal Church ("the Hispanic Commission"). The Hispanic Commission is an agency of the Episcopal Church established in 1970 to develop programs to aid in solving the social, economic and spiritual needs of the Hispanic Community of the United States. According to the respondents, the Hispanic Commission has developed programs in the South Bronx and in Los Angeles, California; it has also funded certain programs in Wisconsin, Illinois, and New Mexico. There is some question as to whether the Hispanic Commission presently is in the process of being dissolved.

As set forth in the affidavit of the prosecutor in charge of the grand jury inquiry, the subpoena served upon Bishop Wood was issued following a series of meetings between the Bishop and agents of the Federal Bureau of Investigation ("FBI") during which meetings Bishop Wood stated that the Executive Council of the Episcopal Church desired to cooperate fully with the government in helping to locate one Carlos Torres, a member of the Hispanic Commission, believed by the government to be a member of the FALN and involved in certain of the bombings under investigation.

On November 3, 1976, local police officers and agents of the FBI in Chicago, Illinois, uncovered a "bomb factory" in a Chicago apartment, containing certain papers linking the occupants to the FALN. Fingerprints of certain persons, including Carlos Torres, were found in the premises, and the agents also uncovered a piece of paper indicating that Torres was affiliated with the Hispanic Commission. This led the agents to the Hispanic Commission and the interviews with Bishop Wood which followed.

On November 18, 1976, agents of the FBI interviewed respondents Cueto and Nemikin at the offices of the Episcopal Center. In response to questioning, respondents stated that they had seen Torres on October 26, 1976, when he had visited their offices; they further stated that they did not know his whereabouts. Shortly thereafter, while on business of the Commission in Puerto Rico, Cueto and Nemikin were again questioned by FBI agents. Further, on November 22, 1976, the agents visited respondents at the Episcopal Center and questioned them about one Oscar Lopez, as well as concerning other individuals and former members of the Commission whose whereabouts were apparently unknown to the FBI. Respondents Cueto and Nemikin stated that they did know the persons involved, but they did not have, or declined to give, any further information about the individuals beyond acknowledging their present or former association with the Hispanic Commission. According to the affidavit of Maria Cueto, the agents then informed her that if she didn't cooperate with them, she would be called before the grand jury and "things would be very bad" for her. Raisa Nemikin states that an FBI agent told her that if the FBI found out she was withholding information, she might be charged with harboring a fugitive.

In the interim, Bishop Wood and certain of his employees had been complying with the requests of the government agents for information. The Bishop furnished to the FBI personnel records of the Hispanic Commission, as well as expense records of several persons affiliated with the Commission. According to the government, the November 24, 1976 subpoena served upon Bishop Wood was fully complied with and is not presently outstanding. Thus, by an order entered this day, this Court denied as moot a motion to quash that subpoena.

On January 4, 1977, the grand jury issued subpoenas ad testificandum which were served upon respondents Cueto and Nemikin. (Ex. G and H annexed to respondent's motion papers) Three days later, a subpoena was issued and served upon Bishop John M. Allin, Presiding Bishop of the Episcopal Church; however, that subpoena was withdrawn by the government on January 20, 1977, and it is not presently outstanding.

Ms. Cueto appeared pursuant to the testimonial subpoena on January 10, 1977, but refused to be sworn before the grand jury until after she had retained an attorney. Respondent Cueto was brought before Judge Lloyd MacMahon of this Court, sitting at that time in this Part, and again she refused to be sworn. Judge MacMahon held Ms. Cueto in summary contempt and ordered her incarcerated. Thereafter Ms. Cueto, through her counsel, entered into an agreement with the government pursuant to which she was released from confinement, but asked no questions before the grand jury. On February 1, 1977, respondent filed motions to quash, a motion to suppress the evidence produced by Bishop Wood, and a motion for an order directing the government to produce for their inspection all records of interviews conducted of them by government agents. In the days following, certain other persons filed motions to intervene and to quash.

This Court has made its rulings on the motions to intervene and on the motions to quash the Woods and Allin subpoenas, as well as on the respondent's motion to suppress. Thus, the remaining questions involve the Cueto and Nemikin testimonial subpoenas and the motions to produce FBI records.

The Motions to Quash

The motions to quash made by respondents Cueto and Nemikin raise identical issues, and thus they will be addressed together. In support of their motions, respondents make three arguments. First, movants argue that the subpoenas were issued in violation of the Hispanic Commission's members' right to free association, protected by the first amendment of the Constitution of the United States. Second, movants claim that the grand jury inquiry infringes upon their free exercise of religion, and that the subpoenas have and will create a "chilling effect" upon the unfettered exercise of the Hispanic Commission's activities. The intervenor Diocese joins in these two arguments. Movants' final argument is that the subpoenas have been issued not for valid grand jury purposes but to assist the FBI in its investigation; thus it is claimed that the actions of the government constitute an abuse of grand jury process.

Accordingly, this Court is called upon to resolve a controversy which the movants assert brings the powers of the grand jury into conflict with fundamental rights protected under the Constitution. Under such circumstances, courts have sought to perform the dual role of zealously protecting constitutional rights and of being alert to guard against abuses of the investigatory powers of the grand jury. In this balancing of claimed conflicting interests, the Court must also weigh the traditional powers of the grand jury to investigate into the possible commission of crime, and the right of the public to every man's evidence except where a valid privilege is appropriately invoked. See Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Hoffman v. United States, 341 U.S. 479, 485, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972). Thus, the inquiry involves a delicate balancing of the various interests involved, with a continuing attention to the protection of fundamental liberties. As stated recently by Judge MacMahon of this Court,

"Rights guaranteed by the Bill of Rights must be zealously guarded if they are not to be whittled away, little by little, through minor seemingly innocuous intrusions which may, over the course of time, result in significant erosion of those rights." (In re Nwamu, 421 F.Supp. 1361 (S.D.N.Y.1976))

The Supreme Court has often admonished the prosecutors and the courts to be

"`alert to repress' any abuses of the investigatory power invoked, bearing in mind that while grand juries `may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire . . . whether a crime cognizable by the courts has been committed', yet `the most valuable function of the grand jury has been not only to examine into the commission of crimes, but to stand between the prosecutor and the accused'". (Hoffman v.

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