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IN RE KINOY

January 29, 1971

In the Matter of the Grand Jury Testimony of Joanne KINOY

Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

This matter is before this court on the application of the Government for an order directing Joanne Kinoy to answer questions before a federal grand jury under a grant of immunity conferred by Title II of the Organized Crime Control Act of 1970. 18 U.S.C. §§ 6001-6003.

 On January 11, 1971 an Assistant United States Attorney applied to this court for the order. It would compel Miss Kinoy to "give testimony and provide other information as defined in 18 U.S.C. § 6001(2) with respect to the whereabouts, places of residence, activities, acquaintances, habits and customs of" two named individuals. The proposed order further declares that "no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against Joanne Kinoy in any criminal case. * * *"

 Along with the proposed order, the Assistant United States Attorney submitted his affidavit setting forth the subjects being investigated by the grand jury and stating that Miss Kinoy had refused, on the basis of her privilege against self-incrimination, to testify regarding the matters being investigated. Also submitted was a copy of a telegram from the Assistant Attorney General in Washington, D.C. authorizing the United States Attorney to seek a grant of immunity pursuant to the provisions of 18 U.S.C. § 6003 in the event Joanne Kinoy asserted her privilege against self-incrimination.

 At first, the Government asserted that the order could be signed ex parte. Although the court was inclined to disagree with the Government, In re Bart, 113 U.S. App. D.C. 54, 304 F.2d 631 (1962), a decision on the issue was unnecessary in view of the Government's voluntarily serving Miss Kinoy with the relevant papers, and the Government's failure to press the point.

 Miss Kinoy, by her attorneys, asserts that both the procedures followed by the Government and the relevant provisions of the Act are defective in a number of respects.

 Briefly summarized these asserted defects are the following: 1) that the court is being asked to grant the witness prospective immunity, i.e., immunity in the future, which it cannot constitutionally do; 2) that the order's specification of only the subjects of inquiry and the failure of the order to specify the questions the witness is required to answer, violates the notice requirements of the Due Process Clause; 3) that the testimony sought before the grand jury is not in furtherance of a legitimate grand jury investigation; 4) that the immunity granted her by the statute is unconstitutional because it is not coextensive with her privilege against self-incrimination.

 The facts relevant to a decision of these issues can be briefly summarized as follows: On December 31, 1970, Joanne Kinoy was served with a subpoena requiring her immediate appearance before the grand jury. This subpoena was continued until after a hearing that day in Kinoy v. Mitchell, 70 Civ. 5698 (S.D.N.Y. Dec. 31, 1970) *fn1" and, then, because the grand jury had gone home, until the following Monday, January 4, 1971. On January 4, 1971 Miss Kinoy appeared before the December regular grand jury and refused to answer, on the ground of her privilege against self-incrimination, a number of questions regarding the two individuals named in the proposed order. After this questioning, Miss Kinoy was excused by the foreman and told to report back to the same grand jury room in one week.

 On January 11, 1971 she reported back to the same grand jury room, but the December grand jury that previously had heard her testimony was not present. She was told that the December grand jury had been excused sine die and that she was now before a new grand jury, the January regular grand jury.

 I. Prospective Immunity

 Miss Kinoy's first claim is grounded on her assertion that, at the present time, she is not subject to a valid grand jury subpoena, and on the fact that the order does not specify the questions she will be compelled to answer. These facts, taken together, she argues, make any action by this court on the proposed order wholly prospective. While her lawyers do not tell the court why a prospective order might be unlawful, the court assumes that the witness is arguing that the Government's application for an order does not present this court with a "case or controversy" as required by Article III of the United States Constitution.

 Miss Kinoy recognizes, of course, that the statute authorizing the Government's application allows for a wholly prospective grant of immunity. (18 U.S.C. § 6003). The witness need not be, at the time of the application, under a grand jury subpoena, nor need she have been asked a single question. However, Miss Kinoy asserts that insofar as the statute authorizes wholly prospective immunity it is unconstitutional. The court finds, however, that the situation contemplated in the statute, a grant of wholly prospective immunity, is not presented in the circumstances of this case.

 Miss Kinoy argues that the grand jury subpoena served on her December 31, 1970 is no longer of any force and effect because the December grand jury, before which she refused to answer questions, has been "discharged." Miss Kinoy is mistaken in her belief that the December grand jury has been "discharged," it has rather been excused sine die. The court takes judicial notice of the fact that a regular grand jury in the Southern District of New York usually sits for a period of only thirty (30) days and is often excused sine die. Moreover, by law, Fed. R. Crim. P. 6(g), the life of a grand jury extends for a period of eighteen (18) months. Thus, the subpoena is still in effect. *fn2"

 Miss Kinoy further argues that as only the subject matter of the questions is stated in the proposed order it is not known at this time what questions she will be asked. The court finds this argument frivolous. From a reading of the December grand jury minutes of January 11, 1970 it is clear that Miss Kinoy properly relied on her Fifth Amendment privilege in response to a number of questions regarding the very subject matter set forth in the Government's order.

 The court's findings that Miss Kinoy is still subject to a grand jury subpoena, and that she has refused to answer, on Fifth Amendment grounds, questions relating to the subject matter set forth in the proposed order, clearly indicate that the Government's application for an order of immunity is not prospective but presents this court with an actual controversy as required by Article III.

 II. Due Process

 The witness claims that the proposed order, in delineating only the subject matter of the questions and not the questions themselves, is violative of due process in that she was unable to reasonably ascertain the conduct proscribed. Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926). She asserts that the proposed order places her in the untenable position of having to guess whether or not a question is related to the subject matter of the order. If she thinks it is not related and refuses to answer, she may be held in contempt if a court later determines it is related. If she thinks it is related to the subject matter of the order and answers the question, she may have incriminated herself without the protection of immunity, if a court later determines it is unrelated.

 The court agrees that the order would be violative of due process if the above described consequences flowed directly from it. But the proposed order does not subject the witness to such perils. If a witness is not sure whether or not a question is related to the subject matter of the order, he is entitled to a prior ruling from the court. Only after such a ruling and the witness' continued refusal to answer would the witness be subject to a citation for contempt. This procedure insures the witness that he will know in advance the conduct that is proscribed and guarantees that he will not inadvertently waive his privilege.

 While the better procedure may be to delineate the questions in the order, Cf. Corona v. United States, 250 F.2d 578 (6 Cir. 1958); Ullman v. United States, 128 F. Supp. 617 (S.D.N.Y. 1955); United States v. Fitzgerald, 235 F.2d 453 (2 Cir. 1956), the procedure ...


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