UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
November 13, 1969
In the Matter of Grand Jury Subpoenas Served on Irving BRAVER and Morton Lehrer
Frankel, District Judge.
The opinion of the court was delivered by: FRANKEL
FRANKEL, District Judge.
Irving Braver and Morton Lehrer move to quash grand jury subpoenas. They urge that in the circumstances to be described any attempt to enforce these subpoenas would offend against the Fourth, Fifth and Sixth Amendments.
Both of the movants were named as defendants in a complaint dated April 16, 1968, which charged that they had violated 18 U.S.C. § 201 by bribing an Internal Revenue Service official. It appears that Braver was arrested on April 18 and Lehrer thereafter appeared voluntarily on April 29, 1968, to answer the complaint; each was released on his own recognizance; and a hearing was scheduled for May 15, 1968. As commonly happens, the hearing was never held. The movants, understandably, have not pressed for a hearing or moved for a dismissal of the complaint. But it is the existence of the complaint, and the theoretically unfinished business attending it, that supplies the asserted grounds for quashing the grand jury subpoenas issued a year and a half later, on October 16, 1969.
Having been named in the complaint as defendants, the movants say, they have a "right not to be witnesses in [a] criminal case against them, [a] right not to give testimony which might tend to incriminate them, and [a] right to representation by counsel in any compulsory interrogation. These rights," their argument continues, "cannot be subverted through the guise of grand jury testimony where their counsel will be excluded, and their right to remain silent eroded at a time when they cannot be advised."
The contentions are by no means devoid of substance. But the court concludes that controlling precedents and principles require denial of the motion. It might well be sufficient for this conclusion to cite United States v. Pilnick, 267 F. Supp. 791, 798-799 (S.D.N.Y.1967), and the authorities there collected by Judge Weinfeld. And see United States v. Corallo, 413 F.2d 1306, 1328 (2d Cir. 1969); United States v. Wolfson, 405 F.2d 779, 784-785 (2d Cir. 1968), cert. denied, 394 U.S. 946, 89 S. Ct. 1275, 22 L. Ed. 2d 479 (1969); United States v. Capaldo, 402 F.2d 821, 823-824 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S. Ct. 1476, 22 L. Ed. 2d 764 (1969); United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S. Ct. 1205, 22 L. Ed. 2d 463 (1969). A few observations are added, however, to reflect the specific arguments the court has considered on this motion.
1. It is noted as a preliminary, if not decisive, matter that the grand jury's investigation and the subpoenas some 18 months after the complaint naming Braver and Lehrer are not confined to the narrow "case" of bribery in which they were named as defendants. The subpoenas refer to the broad subject of conspiracy under 18 U.S.C. § 371, not to the more specific matters in § 201. The grand jury is entitled to explore, and is said to be exploring, large areas of activity in which acts of official corruption or attempts to corrupt are thought to have occurred. While the specific subject of the 1968 complaint against them may well be involved, that does not define or summarize the scope of the inquiry. No reason has been shown why the fact of a complaint against them early in 1968 should confer immunity upon these movants against even being required to appear now before the grand jury.
2. The argument of the present motion tends to reaffirm the wisdom of the position that "potential" defendants, including those named in a complaint, are not insulated against commands to appear before a grand jury. E.g., United States v. Pilnick, supra.2 It is impossible to say now that the movants could not be asked questions to which they would be unable (or, even, not disposed) to plead the privilege against self-incrimination. While the possibility may be remote, it is also within the realm of things readily conceivable that the United States Attorney might see fit to grant immunity to the movants in exchange for their knowledge about broad problems of alleged corruption in government. See 18 U.S.C. §§ 2514 and 2516(1)(c). There is no need now to pursue such speculations. It is sufficient to say that the investigatory power of the grand jury may not be thwarted by the excessive claim of a privilege not to appear at all.
The motion is denied. So ordered.