The opinion of the court was delivered by: DUFFY
Defendants are charged in nine counts of a ten-count indictment with conspiracy, perjury, subornation of perjury and obstruction of proceedings before the National Labor Relations Board (NLRB). Count 10 additionally charges defendant Sheldon Golub with perjury before the grand jury. Defendant John Mongello has moved to dismiss the indictment as against him on the grounds of prosecutorial misconduct which deprived him of unbiased grand jury consideration.
Alternatively, Mongello has moved to compel disclosure of certain grand jury testimony. Defendant Golub has requested an evidentiary hearing with regard to his status at the time he appeared before the grand jury and the circumstances surrounding his appearance. A hearing pursuant to that request was held on May 22, 1978. On the basis of facts thereat adduced, Golub apparently argues that his Fifth Amendment rights against self-incrimination and to due process have been violated by the government's wilful failure to inform him that he was a target of the grand jury investigation at the time he testified before that body.
The facts relevant to defendant Mongello's motion to dismiss are undisputed. By letter dated February 3, 1978, the United States Attorney's office informed Mongello that he was a target of a grand jury investigation and invited him to testify before that body. Counsel for Mongello contacted the prosecutor in response to the letter and informed him that Mongello intended to assert his Fifth Amendment privilege before the grand jury. After the prosecutor explained that he thought the grand jury was entitled to have Mongello appear before it and, if necessary, a subpoena would be issued to compel his appearance, counsel agreed to produce Mongello, who appeared before the grand jury on February 28, 1978.
In response to certain questions posed to him by the prosecutor at that time, Mongello did, in fact, invoke his Fifth Amendment privilege. Although the prosecutor did not instruct the grand jury to draw no adverse inference from Mongello's assertion of his privilege, he did apprise the jurors that Mongello had the right to refuse to answer any question that Mongello felt may tend to incriminate him.
Mongello now complains that the prosecutor's conduct in knowingly posing questions which caused Mongello to invoke his privilege, and in failing to direct the grand jury to draw no adverse inference from this repeated invocation, deprived him of "an unbiased and unprejudiced grand jury" (Koppelman Affidavit, p. 2) and thus invalidates his indictment. This claim is without merit.
Although Mongello was not compelled to appear before the grand jury by process, it is clear that he properly could have been subpoenaed to do so despite his status as a "target." United States v. Wong, 431 U.S. 174, 179, 52 L. Ed. 2d 231, 97 S. Ct. 1823 n. 8 (1977); United States v. Mandujano, 425 U.S. 564, 584, 48 L. Ed. 2d 212, 96 S. Ct. 1768 n. 9 (1976); 410 U.S. 1, 10 n.8, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir.), cert. denied, 410 U.S. 941, 93 S. Ct. 1376, 35 L. Ed. 2d 608 (1943). It is also clear that the grand jury could not have compelled him to answer self-incriminating questions consistent with the rights guaranteed him by the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195 (1892). Here, however, there was no operative compulsion, and Mongello was aware of and exercised his Fifth Amendment rights. That he did so in connection with matters which underlay his subsequent indictment before the grand jury which indicted him, is of no constitutional consequence and does not invalidate his indictment. As the Supreme Court has recognized, no inference of guilt flows from a grand jury witness' assertion of his Fifth Amendment privilege since the ultimate question of guilt or innocence of that witness, if subsequently indicted, is not properly a grand jury consideration, and since the invocation of the privilege before the grand jury is inadmissible at trial of the subsequent indictment. United States v. Washington, 431 U.S. 181, 131, 52 L. Ed. 2d 238, 97 S. Ct. 1814 (1977).
Little need be said with regard to Mongello's claim of prosecutorial misconduct. That the government sought to question Mongello concerning his knowledge of the events under investigation while aware that Mongello intended to assert his privilege was not improper. United States v. Wolfson, 405 F.2d 779, 785 (2d Cir. 1968), cert. denied, 394 U.S. 946, 22 L. Ed. 2d 479, 89 S. Ct. 1275 (1969). Indeed, even were Mongello subpoenaed to testify, it would not have been improper to call him even were the government previously informed that the privilege would be claimed, unless Mongello were called solely for the purpose of displaying his claim of privilege to the grand jury. 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). Here, however, the facts militate against a finding that the prosecutor acted solely for such purpose, and Mongello has made no showing that his pleading the Fifth Amendment was simply for its prejudicial effect. At the time of his appearance the grand jury already had heard evidence for over eight months and had determined that Mongello was a target. Although the better practice might have been for the prosecutor to inform the grand jury that no adverse inference was to be drawn from Mongello's invocation of his privilege, United States v. Wolfson, supra, the grand jury was made aware that defendant had the right not to answer those questions he felt would tend to incriminate him and the mere absence of such a further direction did not in and of itself amount to prosecutorial misconduct which undermined the fairness of the proceedings. See United States v. Washington, supra. Having thus considered and rejected Mongello's claims in this regard, his motion to dismiss the indictment is denied.
By virtue of his alternative motion, Mongello seeks discovery and inspection of the grand jury testimony of Harold Dubliner and Ronald Straci, his purported attorneys at the time of his appearances both before the NLRB and the grand jury, so as to ascertain whether their testimony violated his attorney-client privilege. The government has objected to the disclosure of this testimony, contending that Mongello has failed to show that Messrs. Dubliner and Straci were in fact his attorneys and that, in any event, the privilege does not extend to communications made in furtherance of criminal activity.
Whether Mongello is entitled to disclosure of this grand jury testimony turns on whether he has borne his burden of showing a "particularized need" outweighing the need for secrecy of the grand jury proceedings. See United States v. Moten, 582 F.2d 654, slip op. 3097, 3112 (2d Cir. 1978). Based upon my in camera inspection of the grand jury minutes of the testimony in issue, I find the balance tipped in favor of secrecy at this time, even were Messrs. Dubliner and Straci representing Mongello at the time in issue. Of course, the minutes of their respective testimony may be subsequently made available to defendant should Messrs. Dubliner and Straci testify at trial. See United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967), and, as well, any interest Mongello may have in preserving his purported attorney-client privilege can be adequately protected at that time.
Defendant Golub claims that at the time he testified before the grand jury on July 13, 1977, he was a target of its investigation into conspiracy, perjury and obstruction before the NLRB which form the basis of the conspiracy and substantive counts of the instant indictment, even though the government represented to him that his status was to the contrary. It appears to be his position that he was improperly coerced by the government into making the statements which are charged in Count 10 as perjurious before the grand jury. The logic of the position appears to be as follows: that the government was possessed of information indicating that Golub would have to either incriminate or perjure ...