The opinion of the court was delivered by: COOPER
We deal here with a five count indictment that charges conspiracy, perjury and filing false statements in connection with an alleged securities fraud. All defendants except Kosow are "insiders" in the Merritt Chapman & Scott Corporation. The first count charges that each defendant conspired to violate the securities laws of the United States; the second count that Wolfson committed perjury before the SEC; the third count that Gerbert committed perjury before the SEC; the fourth and fifth counts that Wolfson, Gerbert and Staub filed false statements with the SEC and the New York Stock Exchange.
Defendants Wolfson, Gerbert, Kosow and Staub move to dismiss the indictment on the grounds that their appearance before the grand jury violated their constitutional rights and that the grand jury panel was not properly selected. In the alternative, defendant Kosow moves for a severance; defendants Wolfson and Gerbert move for a change of venue or a continuance.
Appearance of Defendants Before the Grand Jury
Defendants contend that their appearance before the grand jury violated their fifth and sixth amendment rights. It is conceded by the government that each defendant was considered a "possible" defendant at the time of his appearance before that body. Each defendant, by his attorney, notified the Assistant United States Attorney in charge of the matter that he would refuse to answer any inquiry put to him before the grand jury. This position was in fact followed, for each defendant actually invoked his constitutional privilege when questioned upon his appearance before the grand jury.
Defendants contend that the mere calling of a prospective defendant before a grand jury, knowing beforehand that he will invoke his fifth amendment privilege, and then "forcing" him to assert that right, so prejudices him in the eyes of the grand jury as to invalidate the indictments. We regard this position as having been correctly rejected in numerous cases. See United States v. Winter, 348 F.2d 204 (2d Cir. 1965); United States v. Irwin, 354 F.2d 192 (2d Cir. 1965); United States v. Cleary, 265 F.2d 459 (2d Cir. 1959); United States v. Cefalu, 338 F.2d 582 (7th Cir. 1964).
In a recent case, Judge Tenney denied a motion to dismiss upon facts almost four-square with those presented here. We are in agreement with his observation:
If defendant's motion were granted, this would mean that in any case where a prospective defendant were summoned to appear before a Grand Jury, all he would have to do is inform the United States Attorney that he would assert his constitutional privilege, and he would then not be required to appear and testify. In such a case, he would automatically gain immunity from Grand Jury subpoena and "would denude that ancient body of a substantial right of inquiry." United States v. Leighton, 265 F. Supp. 27 (S.D.N.Y. Jan. 24, 1967).
The defendants further assert that in the exercise of our supervisory power we should dismiss the indictment because of the "harassment" by the Assistant United States Attorney. Our close reading of the grand jury transcript reflects neither basis for the complaint nor such deliberate attempt to prejudice the grand jurors as would warrant dismissal. Compare United States v. Di Grazia, 213 F. Supp. 232 (N.D.Ill.1963).
The Assistant United States Attorney has sworn that he instructed the grand jury that they could draw no inference from the exercise by defendants of their privilege against self-incrimination or from the exchange with defendant Staub as to external influence upon the government.
We have no reason whatever to doubt that this in fact was done, or to question the ability of the jurors to proceed as instructed. Cf. United States v. Dodge, 260 F. Supp. 929 (S.D.N.Y. Feb. 11, 1965).
The apparent failure of the Assistant United States Attorney to instruct Kosow of his right to confer with counsel is harmless error inasmuch as Kosow, following the advice of his able counsel, answered no questions.
We also reject defendants' contention that the failure to permit counsel to accompany them in the grand jury room violated their right to counsel under the sixth amendment. In re Groban, 352 U.S. 330, 346-347, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957); United States v. Kane, 243 F. Supp. 746, 753 (S.D.N.Y.1965). "Neither Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) nor Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) is authority for the proposition that a witness before the Grand Jury is entitled to have his counsel physically present with him in the Grand Jury Room." United States v. Goldenberg, 276 F. Supp. 898, 900 (S.D.N.Y. Jan. 9, 1967).
We firmly believe that there must not be tolerance for even a shadow of invasion of a defendant's constitutional privileges and safeguards before the grand jury, but surely it is not asking too much that he be sworn, state his position under oath with respect to each aspect ...