United States v. Coyne
Decision Date | 14 January 1977 |
Docket Number | No. CR-74-70.,CR-74-70. |
Citation | 425 F. Supp. 171 |
Parties | UNITED STATES of America, Plaintiff, v. Howard COYNE, Defendant. |
Court | U.S. District Court — Western District of New York |
Richard J. Arcara, U.S. Atty., Buffalo, N.Y. (William M. Skretny, First Asst. U.S. Atty., Buffalo, N.Y., of counsel), for the Government.
Robert P. Freedman, Buffalo, N.Y., for defendant.
The defendant in this case has been charged in a thirteen-count indictment. Counts I through VI of the indictment charge the defendant with substantive violations of Title 18, United States Code, Section 152, in that he defrauded creditors by unlawfully transferring and concealing property of the Sleep Shops Corporation, the bankrupt. Counts VII through XII charge the defendant with knowingly and fraudulently making a false oath as to a material matter in the bankruptcy proceeding in the filing of various schedules relating to it, also in violation of § 152. Count XIII charges the defendant with conspiracy in violation of the same section.
Defendant has moved, pursuant to a claimed grant of immunity under 11 U.S.C. § 25(a)(10) Bankruptcy Act of 1970, § 7(a)(10), to suppress the use of his testimony given at the first meeting of creditors. Previously, the defendant moved to dismiss the indictment on the grounds that the Government had improperly used this same testimony in presenting evidence to the grand jury. This motion was denied on November 6, 1974.
The statutory language upon which the defendant relies reads, in pertinent part, as follows:
The defendant contends that this statutory grant of immunity is automatic and that the Government has the burden of establishing that it made no use or derivative use of the testimony in question. There is support for the proposition that § 25(a)(10) provides an automatic immunity grant. See Keeney & Serino, The Effect of the Organized Crime Control Act of 1970 in Bankruptcy Proceedings, 46 Am.Bankr.L.J. 1, 10 (Jan. 1972), in which the authors state:
Under the bankruptcy immunity the bankrupt receives an automatic grant for any testimony (and leads) given by him at a hearing which he was directed to attend. There is no prerequisite, to the conferring of immunity, that a claim be made by the witness that the answer will tend to incriminate and a refusal to answer on that basis. (Emphasis in original).1
In this case, however, we are dealing not only with § 25(a)(10), but with subsection (b) as well. Prior to 1938, it was unclear whether a corporate officer could claim the protection of (a)10. In that year, the Congress amended the statute by adding (b), thus clearing up part of the confusion. See United States v. Castellana, 349 F.2d 264, 273 (2d Cir. 1965), cert. denied, 383 U.S. 928, 86 S.Ct. 934, 15 L.Ed.2d 847 (1966). The remaining uncertainty, which is critical to a determination in this case, is the meaning of the word "designated" in subsection (b).
The Second Circuit, in Castellana, stated:
Later, in the same opinion, the court further emphasized the interaction of subsections (a) and (b):
Surprisingly, the case law on § 25(b) "designations" is sparse. In a case which involved the scope of the immunity afforded under a prior version of the statute,2 the designation question was alluded to in these words:
See also id., at 479, n. 9; United States v. Matelich, 474 F.2d 596, 597 (9th Cir. 1973). Other cases have dealt with the refusal of certain witnesses to testify after having been ordered to testify by the Bankruptcy Judge under § a(10), (b). See Block v. Consino, 535 F.2d 1165 (9th Cir. 1976); Goldberg v. Weiner, 480 F.2d 1067 (9th Cir. 1973); In re Hoffman Can Corp., 373 F.2d 622, 624 (3d Cir. 1967). Whether the immunity grant of § 7(a)(10) is automatic, or whether it requires an affirmative invocation of the fifth amendment or of the statute, has not yet been determined. United States v. Boyd, 404 F.Supp. 413, 416 (S.D.N. Y.1975).
It might seem somewhat anomalous that an individual bankrupt would receive automatic immunity under § 25(a)(10), whereas a corporate bankrupt's officer or shareholder would not receive...
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...v. Castellano, 349 F.2d 264, 273 (2d Cir. 1965), cert. denied, 383 U.S. 928, 86 S.Ct. 934, 15 L.Ed.2d 847 (1966); United States v. Coyne, 425 F.Supp. 171 (W.D.N.Y.1977). Therefore, there could be no taint resulting from Weisman's testimony in the bankruptcy Furthermore, the Government has s......
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