The opinion of the court was delivered by: CARTER
Movants, Maria Cueto and Raisa Nemikin, were cited for civil contempt under 28 U.S.C. § 1826(a) for refusing to answer certain questions before a grand jury investigating the terrorist bombing activities of an organization called Fuerzas Armadas de Liberacion Nacional Puertorriquena ("FALN"). Pursuant to their contempt adjudications, they were ordered confined during the life of the grand jury or until they agreed to testify, and both have been held in confinement at the Metropolitan Correctional Center -- Nemikin since March 1, and Cueto since March 8, 1977. The grand jury term expires on May 9, 1978.
Movants claim that their refusal to testify before the grand jury, being based upon moral and religious commitments, is irrevocable. Accordingly, they urge that since they will not betray their religious convictions by giving testimony, their incarceration has had and can have no coercive effect, and that their continued incarceration clearly has become punitive. Therefore, movants contend that the due process guarantees of the federal constitution mandate their release in that their continued confinement bears no reasonable relationship to the purposes for which they were committed.
A clearer understanding of the narrow issue raised in this motion requires a somewhat more detailed recapitulation of the history of this litigation than ordinarily would be warranted.
Cueto has been actively involved in the work of the Episcopal Church since 1966, and her activities have been concentrated largely on issues and programs affecting the Hispanic Community. She became a member of the National Commission on Hispanic Affairs ("Commission") which was organized as an arm of the Episcopal Church to aid the Church in performing its mission of helping to provide opportunities for improving the socio-economic status of the Hispanic Community in the United States. Cueto became a director of the Commission in 1972 and held that position at the time when the events which led to her present incarceration transpired.
Nemikin has been secretary to the Commission since 1972 and held that position when she refused to give testimony before the grand jury.
In 1974-75, a series of bombings occurred at a number of buildings in New York City where banks and corporate offices were housed. FALN claimed responsibility for these terrorist acts. A grand jury investigation of the bombings and FALN's relationship to them was initiated, and on November 9, 1976, a new grand jury was organized to continue the investigation. In due course, subpoenas were issued calling for the production of certain records of the Commission.
Movants were questioned by the FBI concerning Carlos Torres, a member of the Commission whom the FBI was trying to locate and question since the government had reason to believe that Torres was implicated in the planning and/or execution of the bombings. Thereafter, subpoenas were issued calling for movants to appear before the grand jury to testify. Movants sought to quash the subpoenas, but Judge Pierce denied that motion on February 4. See In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977) (Pierce, J.).
Nemikin appeared before the grand jury on February 18, 1977, and was asked and refused to answer the following questions: When did you last speak to or otherwise communicate with Carlos Torres? Identify all funds of the Commission which were directed, openly or in secret, in whole or in part, to FALN or to any FALN member? Identify to the grand jury any person you know who was involved in or claimed responsibility for the dynamite bombing of Fraunces Tavern on January 24, 1975, resulting in the death of four persons?
Cueto appeared before the grand jury on March 4 and refused to answer the following questions: Do you know anything about the whereabouts of Carlos Torres? Did Torres play any part in the bombing of Fraunces Tavern in New York on January 24, 1975? This grand jury is trying to find out, among other things, who is responsible for the bombing of Fraunces Tavern that killed four people. Can you tell us the names of any person who participated in the bombing or do you have any information at all with respect to it?
Movants were taken before Judge Frankel of this court who advised them that they had no recognizable right to refuse to answer the questions put to them before the grand jury. Each persisted in her refusal, and each was adjudged in contempt by Judge Frankel -- Nemikin on February 26 and Cueto on March 4. Each was ordered incarcerated for the life of the grand jury or until they agreed to testify pursuant to 28 U.S.C. § 1826(a), which provides:
Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness ...