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In re Grand Jury Subpoena of Martin Flanagan

decided: October 13, 1982.

IN RE GRAND JURY SUBPOENA OF MARTIN FLANAGAN; UNITED STATES OF AMERICA, APPELLANT,
v.
MARTIN FLANAGAN, APPELLEE



Appeal by the government from an order of the Eastern District of New York, Joseph M. McLaughlin, Judge, denying its motion to hold a witness in contempt for refusal to testify under a grant of immunity before a federal grand jury regarding activities in the United States in furtherance of unlawful smuggling of firearms to Ireland. The motion was denied on the ground that the interrogation would violate the witness' Fifth Amendment privilege against incrimination by posing the risk of foreign prosecution. Reversed. Van Graafeiland, J., concurs in a separate opinion.

Mansfield, Van Graafeiland and Newman, Circuit Judges. Van Graafeiland, Circuit Judge, concurring.

Author: Mansfield

MANSFIELD, Circuit Judge:

The government appeals pursuant to 18 U.S.C. § 3731 from an order of the Eastern District of New York, Joseph M. McLaughlin, Judge, denying its motion to hold Martin Flanagan, a dual citizen of the United States and Ireland,*fn1 in contempt for refusal to testify under a grant of immunity before a federal grand jury regarding activities in the United States in furtherance of smuggling of guns and ammunition from the United States to Great Britain and Ireland in violation of federal firearms statutes, 26 U.S.C. § 5861 and 22 U.S.C. §§ 2778(b)(2) and (c). We reverse. 533 F. Supp. 957.

After being subpoenaed to appear before a federal grand jury in the Eastern District of New York, which was investigating an alleged conspiracy to run guns to the Irish Republican Army (IRA) in Ireland in violation of the above statutes, Flanagan advised that he would invoke his Fifth Amendment privilege against self-incrimination. Thereupon, on December 4, 1981, Judge McLaughlin signed an immunity order pursuant to 18 U.S.C. §§ 6002 and 6003 directing him to testify but granting him immunity against the use of his testimony in any subsequent criminal proceedings against him. Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). On December 9, 1981, Flanagan moved to quash the subpoena, contending among other things*fn2 that since the immunity order would not protect him from prosecution in Ireland or the United Kingdom of Great Britain and Northern Ireland (UK) it would not give him protection coextensive with his privilege, to which he claimed entitlement under Kastigar and Murphy v. Waterfront Commission, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). Following a hearing before the district court on the same date, Flanagan appeared before the grand jury on December 18, 1981, and declined to answer questions regarding gun-smuggling activities in the United States.*fn3 The government made a motion to compel Flanagan to testify or be held in contempt, which was heard by the district court on the same date.

In support of his motion to quash and in response to the government's motion Flanagan, who is named as an unindicted co-conspirator in a federal prosecution of five others for an alleged unlawful conspiracy to transport firearms to the Republic of Ireland for use by the IRA in Northern Ireland, United States v. Falvey, et al., 81 Cr. 423 (S-2) (JMM) (E.D.N.Y.), pointed to the Northern Ireland (Emergency Provisions) Act of 1978, Ch. 53, 48 Halsbury's Statutes of England 972-1011 (3d ed. 1978), which makes it a crime to engage in certain types of political activity, including membership in or solicitation for a proscribed organization, and to The Offenses Against the State Act, 1939, No. 13. The government, on the other hand, represented that the transcripts of Flanagan's testimony would remain secret and not leave the U.S. Attorney's Office or be disclosed to any other body, that the federal prosecutor had not been in communication with law enforcement authorities of Ireland or the U.K., and that the investigation did not involve activities over which those countries would have any jurisdiction. Therefore, it argued, Flanagan had not advanced any real or substantial danger, within the meaning of Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 480-81, 32 L. Ed. 2d 234, 92 S. Ct. 1670 (1972), of facing any prosecution abroad based on testimony he might give before the grand jury.

On February 10, 1982, Judge McLaughlin filed a reasoned opinion denying the government's motion to compel Flanagan to testify before the grand jury. He concluded that the Fifth Amendment protected Flanagan against the risk of foreign prosecution, relying on Murphy v. Waterfront Commission, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). He further held that there is a real risk that Flanagan's answers to the questions put to him before the grand jury could provide a link in a chain of evidence tending to incriminate him under criminal statutes of Northern Ireland and the Republic of Ireland. These statutes include those prohibiting membership in proscribed organizations such as the IRA and permitting the use or possession of documents with respect to a proscribed organization and statements implying membership as evidence of unlawful membership.

The district court observed further that § 1806 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1806, authorizes the United States to make disclosure of foreign intelligence information gained by electronic surveillance. With respect to provisions of Rule 6(e)(2), F.R.Cr.P.,*fn4 which requires grand jury testimony to be kept secret, the district court noted that the rule permits the government to make disclosure without court order to a government agency to the extent necessary to assist the prosecutor in the performance of his duty and took the view that the assumption that government officials will maintain secrecy is insufficient protection against foreign prosecution. Although Judge McLaughlin conceded that a grand jury witness could not be extradited to Northern Ireland for membership in a proscribed organization, he reasoned that this did not eliminate the risk of prosecution abroad because the witness might be extradited for "other crimes" revealed by the government's investigation into the gun-smuggling conspiracy. The district court further concluded that the grand jury's investigation would inhibit Flanagan's right to travel periodically to Ireland on political or personal business. Lastly, Judge McLaughlin held the federal grant of immunity insufficient to protect Flanagan abroad for the reason that foreign prosecutors would not be required to assure him that their charges would be based upon evidence independent of his compelled testimony. From the court's denial of its motion to compel Flanagan's testimony under 28 U.S.C. § 1826(a) the government appeals.

Discussion

The Fifth Amendment protects a witness against giving testimony that would "furnish a link in the chain of evidence needed to prosecute" him for a crime, provided "the witness has reasonable cause to apprehend danger from a direct answer." Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951). But "his say-so does not of itself establish the hazard of incrimination." Id. at 486. When his asserted fear is challenged, the court must look to the surrounding circumstances and context to determine whether the asserted fear is real or imaginary. Often the risk of incrimination is made readily apparent by posing a few hypothetical questions. On the other hand, when the witness is granted use immunity pursuant to 18 U.S.C. §§ 6002, 6003, see Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), his claim of privilege will usually be rejected because the immunity is normally "coextensive with the privilege," and the witness is protected against direct or derivative use of his testimony in any later domestic prosecution against him, federal or state. Id. at 459, 462; Murphy v. Waterfront Commission, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964). Indeed, in the event of such a prosecution the prosecutor is saddled with the heavy burden of proving that his evidence was not derived directly or indirectly from the witness' testimony. Goldberg v. United States, 472 F.2d 513, 516 (2d Cir. 1973); 18 U.S.C. § 6002. See also Murphy v. Waterfront Commission, supra, 378 U.S. at 79.

The witness' assertion that he fears foreign prosecution, however, raises new issues. Although a grant of immunity protects him from any domestic prosecution based on his testimony, no domestic government has the legal power to bar prosecution of him by a foreign country or to prevent the use against him in such a prosecution of testimony immunized from use against him in domestic criminal proceedings. This raises the question of whether the Fifth Amendment entitles him to protection against any prosecution abroad that might be based on or derived from his immunized testimony, a question that has not yet been answered by the Supreme Court or ourselves. See Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 480-81, 32 L. Ed. 2d 234, 92 S. Ct. 1670 (1972). Even if he were so entitled, presumably on the ground that the immunity must be "coextensive with the scope of the privilege," he would still be required to show that despite the grant of immunity there is a real and substantial risk, as distinguished from a mere possibility, that answers to questions might provide a link which would lead to incrimination of him and be used in a foreign prosecution of him. California v. Byers, 402 U.S. 424, 431, 29 L. Ed. 2d 9, 91 S. Ct. 1535 (1971); id. at 437-38 (Harlan, J., concurring); Marchetti v. United States, 390 U.S. 39, 48, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968). Because the witness is fully protected throughout the United States from prosecution, the court in resolving the issue must then focus upon such questions as whether there is an existing or potential foreign prosecution of him; what foreign charges could be filed against him; whether prosecution of them would be initiated or furthered by his testimony; whether any such charges would entitle the foreign jurisdiction to have him extradited from the United States; and whether there is a likelihood that his testimony given here would be disclosed to the foreign government. "The [Fifth Amendment] privilege protects against real dangers, not remote and speculative possibilities." Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. at 478; United States v. Yanagita, 552 F.2d 940, 946-47 (2d Cir. 1977).

In view of the extensive scope of the immunity granted the witness under 18 U.S.C. § 6002, which narrows the risk of incrimination, the burden upon him of showing circumstances posing a risk of incrimination is greater than if he had not been granted immunity. The apprehension must be a real and reasonable one, based on objective facts as distinguished from his subjective speculation. In the absence of a particularized showing that the testimony may incriminate the witness in the foreign prosecution the witness granted immunity could use the privilege as a virtual license to frustrate almost any criminal investigation having international consequences, however peripheral or tangential. This would run counter to the policy in favor of "the public . . . [having] a right to every man's evidence." United States v. Nixon, 418 U.S. 683, 709-10, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974) (quoting Branzburg v. Hayes, 408 U.S. 665, 688, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972)).

Applying these principles, we are satisfied that Flanagan's fear of foreign prosecution, viewed objectively, is remote and speculative rather than real, reasonable, or substantial. In the first place, there is no pending or prospective prosecution of him, much less any effort to extradite him to Northern Ireland or to the Republic of Ireland. The unanswered questions asked of him in the grand jury all relate to conduct in the United States, not to activities in Ireland or the U.K., which might present a closer question. Thus this case differs significantly from In re Cardassi, 351 F. Supp. 1080 (D. Conn. 1972) (Newman, J.), where the witness, although granted use immunity, was asked questions seeking to probe into her marijuana dealings in Mexico and her smuggling of marijuana to the United States from Mexico, a country which had penal laws prohibiting and punishing trafficking in and export of marijuana, which provided some basis for a reasonable fear that her testimony might lead to her being prosecuted in Mexico. Id. at 1084. See also United States v. Brummitt, 665 F.2d 521, 524 (5th Cir. 1981), cert. denied, 456 U.S. 977, 102 S. Ct. 2244, 72 L. Ed. 2d 852 (1982) (counsel "pointed out that Mexican criminal law, which permits in absentia prosecutions, imposes harsh criminal penalties and that Mexican courts would not be bound by a grant of immunity in the United States"). Moreover, criminal laws usually do not apply extraterritorially, United States v. Doe, 361 F. Supp. 226, 227 (E.D. Pa. 1973), aff'd without opinion sub nom. Appeal of Cahalane, 485 F.2d 678 (3d Cir. 1973), cert. denied, 415 U.S. 989, 39 L. Ed. 2d 886, 94 S. Ct. 1587 (1974); In re Quinn, 525 F.2d 222, 223 (1st Cir. 1975), and there is no evidence that Ireland or the U.K. has claimed such jurisdiction. Flanagan's disclosure of criminal activities in the United States would not, therefore, expose him to prosecution in the Republic of Ireland or in the U.K.

Nor has Flanagan identified any foreign law authorizing prosecution for acts committed in the United States or providing grounds for his extradition to Ireland or the U.K. on account of such conduct in the United States. The Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, entered into force January 21, 1977, 28 U.S.T. 227, T.I.A.S. 8468, permits extradition for a schedule of specific offenses which do not include membership in a proscribed organization such as the IRA or violation of gun control statutes. It provides that to qualify for extradition the offense must be ...


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