United States v. McCloskey

• Decision Date: 02 May 1966
• Docket Number: No. 271,Docket 29609.,271
• Citation: 359 F.2d 788
• Parties: UNITED STATES of America ex rel. Joseph USHKOWITZ, Joseph Flori, Alfred Alphonse Giuliano and Francis T. Russo, Relators-Appellants, v. John J. McCLOSKEY, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

359 F.2d 788 (1966)

UNITED STATES of America ex rel. Joseph USHKOWITZ, Joseph Flori, Alfred Alphonse Giuliano and Francis T. Russo, Relators-Appellants, v. John J. McCLOSKEY, Respondent.

No. 271, Docket 29609.

United States Court of Appeals Second Circuit.

Argued March 10, 1966.

Decided May 2, 1966.

Arnold E. Wallach, New York City (Max Fruchtman, New York City, and Sidney G. Sparrow, Kew Gardens, N. Y., on the brief), for appellants.

Irving P. Seidman, Asst. Dist. Atty. for Kings County, New York (Aaron E. Koota, Dist. Atty., and Elliot Golden, Chief Asst. Dist. Atty., on the brief), for respondent.

Before SMITH, HAYS and ANDERSON, Circuit Judges.

HAYS, Circuit Judge:

Appellants seek by petition for a writ of habeas corpus to secure their discharge from the custody of respondent-appellee who is the Sheriff of the City of New York. Each of the appellants appeared before a grand jury of New York State which was investigating charges of a criminal conspiracy among employees of the New York Telephone Company, police officers of New York City and gamblers to obstruct enforcement of the gambling laws. In the course of its investigation the grand jury was inquiring into the activities of one William J. Hussey, security officer of the New York Telephone Company. The appellants, after being informed of the nature and scope of the investigation, were questioned about their knowledge of Hussey. When the appellants refused to answer on the ground of self-incrimination, they were granted immunity from prosecution in accordance with the law of New York. Thereafter appellants again appeared before the grand jury and each was asked, inter alia, "Do you know a person named William J. Hussey?" All appellants refused to answer, again advancing the plea of self-incrimination. Proceedings were thereupon instituted under Section 750 of the New York Judiciary Law, McKinney's Consol.Laws, c. 30, to punish appellants for contempt and they were sentenced to a term of imprisonment of thirty days and to a fine of $250. After they had served their terms, appellants were again subpoenaed to appear before the grand jury and were again asked whether they knew Hussey. Again they refused to answer advancing the same ground of self-incrimination. Appellants were again sentenced for contempt to thirty days imprisonment and a fine of $250. When their second terms of imprisonment were completed, appellants were again summoned before the grand jury, again refused to answer on the same grounds and were sentenced and fined for a third time. It is with respect to this third sentence that appellants, having exhausted their state remedies, see Matter of Ushkowitz v. Helfland, 22 A.D.2d 700, 253 N.Y.S.2d 807 (1964), aff'd, 15 N.Y.2d 713, 256 N.Y.S.2d 339, 204 N.E.2d 498 (1965), instituted in the district court for the Eastern District of New York the present proceeding in which they seek habeas corpus. The district court dismissed the petition but granted a certificate of probable cause. We affirm the district court's dismissal of the petition.

We need not here discuss again the extent to which the double jeopardy clause of the Fifth Amendment may limit state power, see United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966), for by no accepted standard do the repeated prosecutions of these appellants constitute double jeopardy.

Appellants were not tried or punished more than once for a single offense. Each episode before the grand jury was a separate and distinct contempt. The conduct for which the sentences were imposed was similar conduct, but it was engaged in on three occasions separated from each other by appreciable periods of time.

"Every citizen is subject to be recalled as a witness before the same Grand Jury or investigating body. There is no reason why one should get immunity as to subsequent contempts by serving a term of imprisonment and paying a fine. The State has a right to his truthful testimony and has a right to try again to get it after he has once been found guilty of contempt and punished." Second Additional Grand Jury, etc. v. Cirillo, 12 N.Y.2d 206, 210, 237 N.Y.S.2d 709, 712, 188 N.E.2d 138, 140, 94 A.L.R.2d 1241 (1963).

The present case is distinguishable from Yates v. United States, 355 U.S. 66, 72, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). In Yates it was held that ...