The opinion of the court was delivered by: TENNEY
Relator is presently incarcerated in Wallkill Prison, Wallkill, New York, pursuant to a judgment of conviction entered December 1, 1961, after a trial by jury at an Extraordinary Special and Trial Term of the Supreme Court, Oneida County in Rome, New York, at which time he was sentenced to a term of five to ten years for each of the crimes of bribery and grand larceny in the first degree and to a term of three and one-half to seven years for the crime of fraudulently presenting bills or claims to public officers for payment, all sentences to run concurrently.
The judgment of conviction was affirmed without opinion by the Appellate Division, Fourth Department, 17 A.D.2d 1029 (4th Dep't 1962), and leave to appeal to the New York Court of Appeals was denied on January 3, 1963 by Associate Judge Stanley H. Fuld. Relator's appeal to the United States Supreme Court was dismissed in a per curiam opinion, and after treating his papers as a petition for a writ of certiorari, the petition was denied by the Court, two Justices being of the opinion that probable jurisdiction should be noted. Laino v. New York, 374 U.S. 104, 83 S. Ct. 1687, 10 L. Ed. 2d 1027 (1963).
On January 28, 1964, a motion by relator in the New York Court of Appeals, addressed to Judge Fuld, for reargument of the prior denial of his motion for leave to appeal, was denied. Thereafter relator petitioned this Court for a writ of habeas corpus, which petition was dismissed by the Honorable Wilfred Feinberg with leave to renew after disposition of an application to be made by relator for reargument in the New York Court of Appeals. United States ex rel. Laino v. Wallack, 231 F. Supp. 733 (S.D.N.Y.1964). This determination was predicated on two Supreme Court decisions rendered after January of 1964, involving the scope of the privilege against self-incrimination and its application to state procedure. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). In view of those decisions, Judge Feinberg was of the opinion that the New York State courts should have an opportunity to reexamine their prior decisions in the light of the Supreme Court pronouncements.
On July 10, 1964, relator once again applied to Judge Fuld for reargument of the latter's decision of January 28, 1964, which had denied the motion to reargue the prior denial of leave to appeal to the Court of Appeals. In a letter decision of October 14, 1964, Judge Fuld denied relator's application, setting forth therein his reasons for such denial.
Relator now reapplies to this Court for the requested relief, contending that his present incarceration is in violation of his federally-protected rights.
The general historical background does not appear to be in dispute and will be concisely set forth as culled from the papers submitted herein and Judge Feinberg's prior decision. 231 F. Supp. at 734-735.
Relator, previous to the proceeding in question, had been convicted in July 1960 after a non-jury trial at an Extraordinary Special and Trial Term of the Supreme Court, Oneida County, of income tax evasion in violation of the Tax Law of the State of New York. This conviction was reversed by the Court of Appeals on July 7, 1961, on the ground that testimony of relator before the Extraordinary Grand Jury (see 231 F. Supp. at 734 n. 3) which had indicted him on the tax evasion counts had been obtained under compulsion of subpoena and used against him at the trial in violation of his privilege against self-incrimination under the New York Constitution (art 1 § 6). People v. Laino, 10 N.Y.2d 161, 218 N.Y.S.2d 647, 176 N.E.2d 571 (1962). The Court further held that, since relator failed to comply with the procedural requirements of the New York immunity statute (Section 2447 of the Penal Law, McKinney's Consol.Laws, c. 40), he could be reindicted "if sufficient evidence, independent of the evidence, links, or leads furnished by [relator] * * * is adduced to support it * * *." 10 N.Y.2d at 173, 218 N.Y.S.2d at 657, 176 N.E.2d at 578.
On December 21, 1960, and January 12, 1961, subsequent to the income tax conviction but prior to its reversal, relator appeared before the original Extraordinary Grand Jury and after executing a limited waiver of immunity testified inter alia with respect to the sales by the Laino-Fisk Tire Service to the City of Utica. On January 30, 1961, an additional Grand Jury that had been inquiring into these tire sales and before whom relator never testified handed down the indictment which is the basis of the conviction presently being attacked.
Relator's manifold assertions can be condensed to two main points of reference: (a) the 1959 appearance before the Grand Jury (hereinafter at times referred to as "first Grand Jury appearance"), from which sprang his income tax conviction and reversal by the Court of Appeals; (b) his appearances in 1960 and 1961 before the Grand Jury (hereinafter at times referred to as "second and third appearances" respectively), and the signing of the limited waiver from which sprang the conviction now under attack.
The first point of reference involves not only his first Grand Jury appearance, but also (1) his assertion that his present conviction was obtained as a result of links and leads resulting therefrom; and (2) his further assertion that at trial the trial court improperly placed upon him the burden of proving that links and leads from his prior tainted testimony were used to secure the present indictment rather than placing on the People the burden of disproving this.
Insofar as the second and third appearances are concerned, relator contends that his testimony on those occasions violated his federal and state constitutional right in that the waiver of immunity was improperly obtained, and that the statute upon which it is based is unconstitutional. He apparently further contends that after his first appearance he acquired absolute immunity from prosecution.
The thrust of relator's contentions, as they relate to the 1959 appearance and all that allegedly flows therefrom, do not rise to the level of constitutional violation even if we assume, arguendo, that his factual assertions find support in the record. Moreover, on the merits I find that his assertions are not factually tenable in the light of the record submitted herein and the prior decisions by the New York courts.
Under New York law, as applied in the reversal of relator's prior conviction, "a prospective defendant or one who is a target of an investigation may not be called and examined before a Grand Jury, and, if he is, his constitutionally-conferred privilege against self incrimination [New York Const. art. I § 6] is deemed violated even though he does not claim or assert the privilege." People v. Steuding, 6 N.Y.2d 214, 216-217, 189 N.Y.S.2d 166, 167, 160 N.E.2d 468, 469 (1959).
In his first appearance in 1959, relator was subpoenaed to appear before the Grand Jury, and it was the subpoena which provided the compulsion necessary to automatically raise the constitutional privilege. Accordingly, the Court held that "[in] such a case [where a prospective defendant is subpoenaed to appear before a Grand Jury] the subpoena is deemed to be a form of compulsion, and the testimony thus compelled may not be used as the basis for an indictment, or for any other purpose." People v. Laino, supra, 10 N.Y.2d at 171, 218 N.Y.S.2d at 655, 176 N.E.2d at 577. In view of this expanded scope of the self-incrimination privilege which is applied in New York,
relator's first conviction which resulted from testimony adduced after he was subpoenaed to appear, was held violative of this right and no use could be made of the testimony.
While this may very well be the law in New York, it is clear beyond dispute that such is not the law in the federal courts, nor is such an expanded privilege within the scope of the Fifth Amendment as encompassed in the due process clause of the Fourteenth Amendment. Thus, under the Federal Constitution, the mere fact that a prospective defendant is subpoenaed to appear before a Grand Jury does not, without more, violate any federally-protected rights, nor is the testimony given at such time in any way constitutionally tainted. United States v. Winter, 348 F.2d 204 (2d Cir. July 2, 1965) petition for cert. filed, 8/26/65, 34 U.S.L. Week 3081 (9/14/65) (see cases cited therein at n. 5 and n. 6). Accordingly, though the New York Court of Appeals found relator's forced appearance to have violated the New York Constitution, it did not find, nor could it have found, this appearance to have violated the Federal Constitution. Thus there was no abrogation of relator's rights against self-incrimination under the Federal Constitution by reason of the first appearance.
This broadened state standard of the self-incrimination privilege and its violation is "of course not proscribed by Malloy v. Hogan. A State may grant to its citizens greater (but not lesser) standards than those required by the Fifth Amendment's privilege via the Due Process Clause of the Fourteenth." Sobel, The Privilege Against Self-Incrimination "Federalized", 31 Brooklyn L. Rev. 1, 41 (1964); see also id. at 26, 27. However, by the same token, an abrogation of the broader state protection, which is not violative of the narrower federal protection, cannot be held to constitute a violation of the federally-protected rights, so as to be cognizable on habeas corpus (i.e., a violation of constitutional proportions).
If, after this first appearance, relator were indicted, based on the testimony given before the Grand Jury, would his federally-protected rights have been violated? I think not, for the due process clause embodying the Fifth Amendment privilege presents the minimum standard which no state can abridge. It does not prevent a state from giving broader protection, but, by the same token, if a state gives such broader protection any violation thereof is not an encroachment upon the narrower protected federal sphere.
Accordingly, I am of the view that an intrastate, so to speak, constitutional violation (of the State Constitution) cannot by reason of its being compounded (i.e., the use of the "tainted" evidence) rise to the level of a federal constitutional violation.
Since relator was not compelled, in the federal constitutional sense, to give testimony against himself in his first appearance, there was no violation of his federal privilege, irrespective of what may have been the result under the broader New York State Constitution. Nor did the use of this federally-uncompelled testimony constitute any violation.
An analogous, but perhaps more extreme situation, was presented in United States v. Interborough Delicatessen Dealers Ass'n, 235 F. Supp. 230 (S.D.N.Y.1964), decided after Malloy v. Hogan, supra, and Murphy v. Waterfront Comm'n, supra. In that case, the "prospective" defendants were subpoenaed to appear before an Assistant New York State Attorney General, which, of course, under New York law, automatically violated their New York constitutional privilege against self-incrimination. They were thus protected under New York law to the same extent as was relator after his first conviction and its reversal.
The testimony elicited was then apparently turned over to the federal authorities who used it to indict the defendants for violation of federal law.
The Court held that, even though the defendants had acquired a "limited" immunity by reason of their being "compelled" in the New York constitutional sense to give testimony against themselves, that did not preclude the use of that information by the federal authorities.
In so deciding, the Court was of the view that it is the federal standard that is to be used in defining the meaning of the word "compelled" in the construction of the Fifth and Fourteenth Amendments.
"A state may not provide a lesser privilege than that guaranteed by the United States Constitution. * * * Nor may it unilaterally expand the federal privilege outside its own jurisdiction." 235 F. Supp. at 232.
In view of that fact, and since none of the defendants were "compelled" to give testimony against themselves in the federal sense, the Court held that "no one of the defendants is entitled to the protection against self-incrimination provided by the United States Constitution." Id. at 233.
Accordingly, in the case at bar, if relator's initial appearance violated no federal constitutional right, as it did not, for he at no point was compelled to testify against himself in violation of his Fifth Amendment privilege, it is difficult to see wherein evidence adduced as a result of that apearance is constitutionally tainted.
Insofar as relator argues that, as a result of his "compelled" appearance he secured absolute immunity from all further prosecution, and that Section 2447 of the Penal Law and the procedure therein outlined as it relates to him is unconstitutional, his position is equally untenable.2a
What relator confuses is the consequence of a violation of his New York constitutional privilege, which, as noted, is broader than the federal privilege, and the statutory grant of absolute immunity from prosecution under Section 2447, which arises under circumstances closely paralleling a violation of the Fifth Amendment privilege against self-incrimination, but the consequences of which are different.
The difference was succinctly stated by Justice Brennan in Matter of Second Additional Grand Jury, 10 A.D.2d 425, 428, 202 N.Y.S.2d 26, 30 (2d Dep't 1960):
"If it be assumed, arguendo, that these appellants are in fact prospective defendants or targets, it then becomes necessary to determine whether section 2447 of the Penal Law was properly and constitutionally applied to them. In considering this question, it is important to remember the essential difference which exists in the nature and extent of the constitutional privilege provided for and conferred by section 6 of article I of our State Constitution and the statutory immunity which is provided for, and which may be conferred, pursuant to section 584 of the Penal Law, as amended, and section 2447 of the Penal Law. Section 6 of article I of the State Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. In the event that this constitutional privilege is violated, the witness is protected not only from indictment based upon any incriminating testimony which he may have given before the Grand Jury, but he is also protected from the use of such evidence. However, by the violation of his aforesaid constitutional privilege, a prospective defendant does not gain absolute immunity from prosecution for the crimes concerning which he may have testified, because these alleged crimes may be resubmitted, for consideration, to another Grand Jury before which the said prospective defendant is not subpoenaed and examined. (People v. Freistadt, 6 A.D.2d 1053, 179 N.Y.S.2d 633, supra; People ex rel. Coyle v. Truesdell, 259 App.Div. 282, 18 N.Y.S.2d 947; People v. Bermel, 71 Misc. 356, 128 N.Y.S. 524, supra; cf. People v. Steuding, 6 N.Y.2d 214, 189 N.Y.S.2d 166 [160 N.E.2d 468], where this question was expressly left open.) On the other hand, where statutory immunity has been conferred pursuant to, and in accordance with, the grants and procedure contained in the Penal Law, such immunity is full, absolute, and complete in that the incriminating matters disclosed may not be resubmitted to another Grand Jury or otherwise received or considered against the immunized witness or prospective defendant upon any criminal prosecution in this State for any crime disclosed or revealed by the testimony of said immunized witness or prospective defendant. People v. Breslin, 306 N.Y. 294, 118 N.E.2d 108, supra; Matter of Grand Jury of the County of Kings (Nicastro-Chadeayne), 279 App.Div. 915, 110 N.Y.S.2d 532, affirmed 303 N.Y. 983, 106 N.E.2d 63. Thus it may be said that the immunity resulting from the violation of the constitutional privilege contained in section 6 of article I of the State Constitution is a limited immunity, whereas the statutory immunity conferred pursuant to the grant and procedure contained in the pertinent sections of the Penal Law, is a broad or absolute immunity."
The New York Court of Appeals, in reversing relator's prior conviction held that, while he received "limited immunity" by reason of a violated privilege, he did not receive "absolute immunity" as a result of the statutory immunity provision in Section 2447 of the Penal Law. With this I am in accord. Conceivably, if relator had testified after invocation of his privilege, he not only would have come within the purview of Section 2447 but would have been "compelled" in the federal constitutional sense as well, and therefore an issue of constitutional magnitude would have been presented. However, he did not do so, for if he had then the provisions of Section 2447 would have been held applicable, which was not the case.
Laino was subpoenaed to appear before the Attorney General on March 24, 1959. This he did with counsel but refused to turn over any documents, and was then subpoenaed to appear before the Extraordinary Grand Jury on March 31, 1959. At that time he appeared with counsel who remained outside the Grand Jury room. The initial colloquy between Laino and the prosecutor is fully set forth at 10 N.Y.2d 165-166, 218 N.Y.S.2d at 650-651, 176 N.E.2d at 573-574, wherein it clearly appears that Laino was fully advised of his rights and the method whereby he should interpose his privilege if he was so inclined. If anything, the prosecutor appears to have informed Laino in a very precise way of the manner in which he could and should assert his privilege as to any question he deemed objectionable.
Generally, the substance of the instructions given by the prosecutor appears to comport with the procedure applicable in the federal courts.
Thus the federal privilege against self-incrimination may not be asserted in advance of questions actually propounded. United States v. Harmon, 339 F.2d 354, 359 (6th Cir. 1964), cert. denied, 380 U.S. 944, 85 S. Ct. 1025, 13 L. Ed. 2d 963 (1965). This procedure was outlined to relator as well, as was the need to assert the privilege as a particular question was asked. In Re Turner, 309 F.2d 69 (2d Cir. 1962); see United States v. Wortman, 26 F.R.D. 183, 204-205 (E.D.Ill.1960), rather than a blanket statement asserting the privilege. See People v. Laino, 10 N.Y.2d 161, 173-174, 218 N.Y.S.2d 647, 176 N.E.2d 571.
The Court of Appeals, in reversing Laino's prior conviction but holding that Section 2447 was inapplicable, did so by reason of the fact that "[ he ] [Laino] did not interpose his privilege at any time." 10 N.Y.2d 166, 218 N.Y.S.2d at 651-652, 176 N.E.2d at 574.
Insofar as the records produced at this first appearance are concerned, prior to their introduction into evidence relator was again specifically advised of the procedure and of his rights. "If you feel that anything here contained might tend to incriminate you, you have the right to claim your privilege not to permit the introduction of them or the release of them but you must claim that privilege. Again if they are introduced they will be retained. I think the law permits a reasonable time for the opportunity to review them. For that reason, if you desire to claim your privilege you must express it." (Fischer Affidavit in Opposition at 8.) The defendant replied as noted by the Court of Appeals: "Keep everything you got." 10 N.Y.2d 174, 218 N.Y.S.2d at 658, 176 N.E.2d at 579; Fischer Affidavit, supra.
Moreover, after his March 31, 1959 appearance, relator's accountant was subpoenaed to appear and produce records of the Laino-Fisk Tire Service, and Laino was also subpoenaed to bring with him his "Accounts Receivable Ledger". The accountant appeared and without objection brought with him both the records sought of him and the "Accounts Receivable Ledger" asked of Laino. Presumably, between relator's March 31st appearance and the production of the records he had ample opportunity to confer with counsel, but nonetheless he at no time invoked his privilege.
In sum, the Court of Appeals held as follows:
"When he first appeared before the Grand Jury, the defendant in no uncertain terms demanded complete immunity prior to answering any questions. He properly was told that in order to obtain immunity under the statute he would have to refuse to answer a particular question, asserting his privilege against self incrimination, and then answer the question propounded if ordered to do so by the Grand Jury * * *. Defendant then proceeded to testify and never actually interposed his privilege. At no time was he directed or ordered by the Grand Jury to answer a particular question, for at no time did he refuse to answer. Technically, then, the requirements of section 2447 were not met, notwithstanding that the defendant made his position clear, for it is well settled that the privilege against self incrimination may not be asserted or claimed in advance of questions actually propounded (King v. Liotti, 190 Misc. 652, 672, 76 N.Y.S.2d 98, 190 Misc. 672; Matter of Weiner, 183 Misc. 267, 49 N.Y.S.2d 199; Radin v. Kornreich, 17 Misc.2d 860, 41 N.Y.S.2d 638; People v. Ryan, 6 N.Y.2d 975, 977, 191 N.Y.S.2d 169, 170 [161 N.E.2d 393], dissenting opinion, Burke, J.). When the records were being introduced, the Special Assistant Attorney-General specifically asked defendant if he chose to interpose his privilege as to any, and defendant replied 'Keep everything you got.' The damaging 'accounts receivable ledger' subsequently was delivered pursuant to subpoena, without objection by defendant. As indicated, however, under the Steuding principle, the judgment of conviction should be reversed and the indictment dismissed.
The judgment appealed from should be reversed and the indictment dismissed." 10 N.Y.2d 173-174, 218 N.Y.S.2d at 658, 176 N.E.2d at 579.
As one observer put it, "Laino despite advice and warnings and a specific offer of immunity simply never claimed his privilege." Sobel, supra, 31 Brooklyn L.Rev. at 35.
In view of this uncontradicted record, Section 2447 was held inapplicable. See Sobel, supra at 32. Similarly, in view of the failure to assert any privilege, there was no direction to answer and there was thus no federally recognized compulsion violative of the Fifth Amendment rights. See Sobel, supra at 40. "If a witness before a grand jury desires the protection of the privilege, he must claim it or he will not be considered to have been compelled to testify within the meaning of the Amendment." United States v. Pile, 256 F.2d 954, 956 (7th Cir. 1958), and, as noted above, relator testified freely without ever asserting any privilege.
Thus relator's testimony was not compelled, it was thus not tainted, nor were links or leads therefrom in any way tainted, and even if used directly to convict him, this in no way constituted an abrogation of any federally-protected rights. To highlight this lack of constitutional infirmity, if we were to take the facts surrounding relator's first Grand Jury appearance and merely change the jurisdiction to that of a Federal Grand Jury, could it be argued that relator's Fifth Amendment rights were in any way violated; i.e., was he "compelled" to give testimony against himself?
To ask the question is to answer it.
Moreover, even if we were to assume, arguendo, that the testimony of March 31, 1959, was compelled in the federal sense, reindictment would be possible if "sufficient evidence, independent of the evidence links, or leads furnished by the * * * [relator] is adduced to support it." People v. Laino, 10 N.Y.2d 161, 173, 218 N.Y.S.2d 647, 657, 176 N.E.2d 571, 578; see United States v. Pappadio, 235 F. Supp. 887, 890 (S.D.N.Y.1964), aff'd, 346 F.2d 5 (2d Cir. May 24, 1965). Relator contends that the testimony adduced, and its links and leads, were in fact used to reindict him and cause his present incarceration. However, this matter was fully tried before Justice Marsh in a private inquiry held out of the hearing of the jury at relator's trial. After full opportunity was afforded to both sides to fully explore the question, the Justice held as to the items and testimony objected to, that each was secured not as a result of the prior testimony nor any links or leads resulting therefrom. See T.R. 764-765; 2885-2886; 2902-2903; 4380-4386; People's Brief to Appellate Division, Fourth Department at 98-100.
These factual findings were affirmed on appeal to the Appellate Division and were specifically affirmed in Judge Fuld's letter decision of October 14, 1964, wherein Judge Fuld held that after "further thought and study and a careful reading of the record" (Judge Fuld also sat on the income tax appeal of relator) he found that "no tainted evidence was used or relied upon in procuring the defendant's conviction."
All the arguments and evidence presently proffered by relator were presented below and ruled upon by the trial Judge and were thoroughly reviewed and rejected by Judge Fuld. To relitigate these factual issues after full hearing in the State court would be to misconstrue the dictates of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Nor can it be said, after a reading of the trial court's decisions as they related to the evidence objected to, that "the state factual determination is not fairly supported by the record as a whole." Townsend v. Sain, supra, at 313, 316, 83 S. Ct. at 757; see People's Brief on Appeal to Appellate Division, Fourth Department at 101-124,
and I accordingly would be inclined to adopt those findings. See United States ex rel. Robinson v. Fay, 348 F.2d 705 (2d Cir., July 22, 1965).
The foregoing would ordinarily terminate the issue. However, relator contends that the decision by the trial court was based on improper federal standards in that the burden of proof was improperly allocated to him to show that links and leads were used to support the conviction, rather than the burden being placed on the people to show the independent source of the evidence, or, as relator argues, to show that no links and leads were used to obtain the indictment or sustain the conviction. (Townsend v. Sain, 372 U.S. 293, 316, 83 S. Ct. 745, 9 L. Ed. 2d 770.)
On the issue of burden of proof, no standard was articulated by the trial Judge, and, as noted, relator asserts that in fact the burden was placed on him. In approaching the question, the following statement in Townsend, ...