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IN RE GERMANN

September 27, 1966

In the Matter of a Grand Jury Subpoena Served on Walter GERMANN


The opinion of the court was delivered by: COOPER

MEMORANDUM

 COOPER, District Judge.

 This motion seeks to vacate, pursuant to Rule 60(b)(4), F.R.Civ.P. and Rule 57(b), F.R.Crim.P., this Court's judgment of August 15, 1966 finding petitioner in civil contempt for his failure to appear before the Grand Jury on May 31, 1966.

 On July 13, 1966, by order to show cause, the Government moved to hold petitioner in contempt. A hearing was held before this Court on August 15, 1966. Petitioner, though receiving notice thereof, did not attend. The basic facts as found by the Court are not in dispute.

 Petitioner, a Swiss citizen, was personally served in New York City on April 28, 1966 with a Grand Jury subpoena returnable on the 29th before the April Grand Jury. He appeared on that date, and was directed by the Grand Jury foreman to reappear before the May Grand Jury on May 2, 1966. Petitioner complied with this direction. He next appeared on May 6 and 10th, each time pursuant to the oral direction of the foreman of the May Grand Jury.

 During the course of such proceedings, petitioner asserted that without the benefit of certain books and records located in Switzerland, he was unable to provide the Grand Jury with certain information it sought to elicit. Petitioner was thereupon granted permission to return to Switzerland to examine the relevant records and return before the Grand Jury for a continuance of his testimony. In accordance with that understanding and by mutual consent, on May 10, 1966 the foreman again orally directed him to reappear on May 31, 1966.

 Despite the foreman's order and petitioner's promise to reappear on May 31st, he purposely failed to do so. Instead, petitioner on May 31st sent his New York attorney, Richard Wels, Esq., the following telegram:

 
I am sorry to inform you that, after testing my conscience and weighing my responsibilities, and after taking the best legal advice I could have found, I will not appear today, Tuesday 31st. There is an acute conflict of law between our two countries and the unlimited scope of the questioning would force me to continuously violate Swiss law both on banking secrecy and economic espionage. As I am a Swiss citizen I will obey the Swiss laws first as the United States expect their citizens to obey their laws first. Please advise the competent authorities and express my apologies.

 By order to show cause, signed July 13, 1966 and returnable August 1, 1966, the Government moved to hold petitioner in contempt. A copy of this order with its supporting affidavit was served on Mr. Wels, whose firm accepted service on July 13, 1966. In addition, a copy was sent by certified mail to petitioner's address in Basel, Switzerland. Affidavit of Assistant United States Attorney John S. Allee, sworn to September 7, 1966, P6.

 However, by letter dated July 21, 1966, petitioner discharged Mr. Wels with respect to the Grand Jury proceedings, apparently because of a difference of opinion as to his failure to appear. Petitioner then retained the firm of Donovan, Leisure, Newton & Irvine, Esqs. to represent him. Thereafter, the Government consented to adjourn the hearing to August 15, 1966, although counsel had asked for at least a month's adjournment. On August 4, 1966 the Government was advised that this firm would no longer represent petitioner. Mr. George S. Leisure, Sr., of counsel, cabled petitioner on August 5, 1966 that the hearing, nevertheless, would take place on August 15, 1966 as scheduled. Affidavit of Assistant United States Attorney John S. Allee, sworn to September 7, 1966, P7.

 On August 15, 1966, Mr. Green, an attorney with the firm of Baker, McKenzie & Hightower, Esqs. stated in open Court that his firm had been recently approached in connection with representing petitioner, and requested an adjournment to September 6th in order to decide whether to undertake his defense. The Court denied this request. Mr. Green did not appear for petitioner; he remained in the courtroom on that day as a spectator.

 At the close of the Government's evidence, we found petitioner in civil contempt for wilfully and knowingly failing to appear on May 31st in response to a lawful direction of the foreman. It was the order of this Court on August 15th that unless petitioner appeared before the Grand Jury on or before August 22, 1966 he would be subject to a fine of $25,000 and a further fine of $1,000 for each day thereafter that he failed to appear. To date, petitioner has failed to appear.

 Petitioner raises several arguments in support of vacating the judgment of this Court. In essence, he argues that: (1) the order to show cause of July 13, 1966 was improperly served; (2) there was a denial of petitioner's right to counsel; (3) the Court lacked jurisdiction over ...


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