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United States v. Curcio

June 5, 1956

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSEPH CURCIO, DEFENDANT-APPELLANT.



Author: Medina

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, C.J.: On March 29, 1956, a Special Grand Jury was impanelled in the Southern District of New York to investigate charges of racketeering in the garment and trucking industries. Appellant, Secretary-Treasurer of Local 269 of the International Brotherhood of Teamsters, having been duly served with a personal subpoena, and a subpoena duces tecum calling for the production of certain books and records of the union, failed to produce the books and records and refused to answer questions as to their whereabouts, claiming an alleged privilege under the Fifth Amendment and asserting that answers to the questions might tend to incriminate him. For such refusal he was adjudged guilty of a criminal contempt, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, and sentenced to imprisonment for six months, unless he sooner purged himself by answering the questions. From the order containing such adjudication and commitment defendant appeals.

On his first appearance before the Grand Jury on Tuesday, April 10, 1956, in response to the subpoenas, appellant refused to answer any questions whatever, stating that he had not consulted a lawyer and that he would not testify until he had done so. The matter was put over to Thursday, April 12, 1956, when appellant arrived with his counsel, who remained in the anteroom of the Grand Jury during the time of appellant's interrogation. The full record of what occurred has been released and is one file but is not part of the record before us. It does appear, however, that appellant was determined to give no information whatever concerning the whereabouts of the books, and records, although he readily admitted that there were such books and records and that he was Secretary-Treasurer of Local 269. He did testify that these books and records were not in his possession either at the time of the service of the subpoena duces tecum (Monday, April 9), or at the time of his appearance before the Grand Jury (Thursday, April 12).

Accordingly, on April 17, the Assistant United States Attorney in charge of the interrogation of Curcio brought the matter of his recalcitrance before the District Judge for a determination of whether or not the Fifth Amendment plea should be sustained or overruled. The court reporter who had been present before the Grand Jury identified his stenotype tape of some fifteen questions addressed to appellant relative to the whereabouts of the books and records and his refusals to answer any of them. Appellant's counsel was present.His first move was to request that "the witness be furnished with a copy once the minutes are transcribed of the questions which are the subject in issue at the present time." The reporter then testified at length to the record of what occurred before the Grand Jury, giving the text of the fifteen questions and whatever was said in reference thereto by appellant, by the foreman of the Grand Jury and by the Assistant United States Attorney conducting the examination of appellant.

The questions were:

"Q. I am going to ask you some questions, including some that were put to you on Thursday which you declined to answer. Referring to the books and records of Local 269 of the International Brotherhood of Teamsters, have you at any time been in custody of these books and records?

Q. Mr. Curcio, have you ever had possession of the books and records of this local?

Q. Did you have custody and control of these records last Thursday?

Q. Do you have possession of those records or any of them today?

Q. Do you have custody and control of any of those records today?

Q. Where are any of those records today, if you know?

Q. Who has any of those records today, if you know?

Q. Where were any of these records or all of these records a ...


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