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In re Grand Jury Proceedings

November 14, 1984

IN RE GRAND JURY PROCEEDINGS; UNITED STATES OF AMERICA, APPELLEE,
v.
NICOLE CHEVRIER, APPELLANT



Appeal by a grand jury witness from orders of the District of Vermont, Albert W. Coffrin, Chief Judge, confining her for refusal to testify, after being granted immunity from prosecution in the United States, on the ground that her testimony might incriminate her under the laws of Canada. Orders modified and affirmed as modified.

Author: Mansfield

Before: FEINBERG, Chief Judge, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

Once again we are faced with the question of whether a federal grand jury witness' fear of foreign prosecution is real and substantial enough to justify her invocation of a Fifth Amendment privilege and, if so, whether the privilege may be invoked to protect against the risk of incrimination under foreign law. See Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 478, 32 L. Ed. 2d 234, 92 S. Ct. 1670 (1972); United States v. Flanagan, 691 F.2d 116, 121 (2d Cir. 1982); In re Gilboe, 699 F.2d 71, 74-75 (2d Cir. 1983). Nicole Chevrier, a citizen of Canada, appeals from orders of the District of Vermont entered by Chief Judge Albert W. Coffrin pursuant to 28 U.S.C. § 1826 directing that she be confined for refusal to testify, after being granted immunity from prosecution in the United States, regarding the circumstances surrounding her transportation from Canada into the United States of $139,000 in U.S. currency. She refused to testify on the ground that her testimony might incriminate her under the laws of Canada. Judge Coffrin's orders, both dated June 5, 1984, granted the government's motion for confinement but stayed enforcement pending appeal and released Chevrier on bail, whereupon she returned to Canada. The orders also contained provisions designed to prevent the disclosure of Chevrier's grand jury testimony to Canadian law enforcement authorities. We modify the orders to add further protective provisions and affirm the orders as so modified.

On January 22, 1984, Chevrier was arrested at the Burlington International Airport after she was found to have transported from Canada into the United States on the previous day $139,000 in U.S. currency in concealed compartments of her luggage and was charged with failing to report the importation of more than $5,000 in monetary instruments, 31 U.S.C. §§ 5316(a), (b) and 5322(a).*fn1 At the time of arrest Chevrier, after receiving Miranda warnings in English and French, stated that she had been given the money in Canada by someone she knew and had been paid $3,000 to deliver it to someone in New Jersey whom she did not know. Shortly after Chevrier's arrest the Quebec Provincial Police made an inquiry of federal law enforcement officials in Burlington regarding the circumstances surrounding Chevrier's arrest. However, no criminal proceeding against her has been instituted in Canada and there is no evidence that one is contemplated.

Upon being called before a federal grand jury on February 2, 1984, Chevrier stated that she was invoking her Fifth Amendment privilege against self-incrimination. The government thereupon obtained an order pursuant to 18 U.S.C. §§ 6002, 6003 (1982) granting her use immunity, and she was directed by the court to answer questions before the grand jury. When she refused to do so, asserting fear of Canadian prosecution as the basis for her refusal, the government on February 3, 1984, moved for an order of confinement pursuant to 28 U.S.C. § 1826.

While the government's motion was pending, Chevrier was released upon $20,000 bail, which was set in the criminal case against her and agreed to by Judge Coffrin. She then returned to her home in Quebec. Thereafter the government consented to dismissal without prejudice of the criminal charges because it was unsure of her knowledge of the reporting requirements of 31 U.S.C. §§ 5316 and 5322.

Judge Coffrin held two hearings on the government's motion for confinement. During the hearings, the Assistant U.S. Attorney for the District of Vermont advised the judge that he wanted to question Chevrier before the grand jury regarding the circumstances surrounding her transportation of the currency into the United States, including the identities of the owner of the money and of the person from whom she received it, the purpose for which she was transporting it, her destination, the person to whom she planned to deliver it, and what she was to receive, if anything, for transporting it. Her counsel argued that her answers, if revealed, could possibly lead to her being prosecuted in Canada for participation in a conspiracy to export, import or deal in narcotics or some other contraband in violation of Canadian law.

On June 5, 1984, Judge Coffrin filed his decision granting the government's motion for confinement, subject to the provisions of a protective order entered on the same date. After reviewing the circumstances in the light of Zicarelli, Flanagan and Gilboe, supra, he concluded that the possibility of Canadian prosecution of the witness was too speculative to entitle her to "invoke the Fifth Amendment for . . . fear of foreign prosecution," especially in view of a supplemental protective order entered by him on the same date. The latter order prohibited disclosure of her grand jury testimony, directly or indirectly, to any foreign law enforcement official or authority without an express order of the court permitting such disclosure. It also provided that any disclosure made pursuant to F.R. Crim. P. 6(e) (3) by the Assistant U.S. Attorney conducting the grand jury proceeding at which Chevrier appeared must be accompanied by delivery of a copy of the court's order with such instructions as the Assistant U.S. Attorney might consider necessary, and that the prosecutor should notify the court of any such Rule 6(e) (3) disclosure, furnishing the name of the person to whom it was made, confirming that a copy of the order had been delivered to the recipient, and summarizing any supplemental instructions.

The district court stayed the confinement order pending appeal pursuant to 28 U.S.C. § 1826(b), and directed that Chevrier be released on $20,000 bail, the amount that had been provided on the dismissed criminal charge against her.*fn2

Discussion

Neither the Supreme Court nor this court has ruled on the question of whether the Fifth Amendment protects a witness against the risk of foreign prosecution. See Zicarelli v. New Jersey State Comm'n of Investigation, supra, 406 U.S. at 478. Before that issue may be reached there must be "a real and substantial fear of foreign prosecution" since "it is well established that the privilege protects against real dangers, not remote and speculative possibilities." Id., 406 U.S. at 478; accord Flanagan, supra, 691 F.2d at 121. Moreover, as we stated in Flanagan, the fear must be "based on objective facts as distinguished from . . . subjective speculation." 691 F.2d at 121; accord In re Gilboe, supra, 699 F.2d at 75.

In Flanagan, we noted that in determining whether there is a real and substantial danger of foreign prosecution the court should

"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 ...


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