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In re Grand Jury Proceedings

United States District Court, S.D. New York

January 28, 2014


For Gerald Koch, Movant: Susan V. Tipograph.

For United States of America: John P. Cronan, Michael D. Lockard, Preet Bharara, United States Attorney, Southern District of New York.


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JOHN F. KEENAN, United States District Judge.

Movant Gerald Koch is presently confined at the Metropolitan Correctional Center because this Court found him to be in civil contempt. Koch has chosen to

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remain in contempt -- indeed, he promises continued and endless contempt -- but petitions the Court to be released so that he might be spared the remaining consequences of his choice. For the reasons that follow, the motion is granted.

I. Background

On September 10, 2009, Koch was subpoenaed to testify before a grand jury.[1] Invoking his Fifth Amendment right against self-incrimination, Koch refused to answer questions before the grand jury. Judge Sullivan, the Part I District Judge at the time, conducted an ex parte and in camera evaluation of Koch and determined that his testimony before the Grand Jury could implicate him within the meaning of the Fifth Amendment.

After pursuing other avenues of investigation for several years, the Government gave immunity to Koch and sought to compel him to testify under 18 U.S.C. § § 6002 and 6003. Consequently, on April 11, 2013, Part I District Judge Sweet issued an order compelling Koch to testify before the grand jury.

On or about May 7, 2013, after I began presiding in Part I, Koch moved to quash the subpoena. His position was built upon two propositions: first, the general proposition that grand juries are an illegitimate abuse of prosecutorial power by the federal government; and second, the specific proposition that Koch possesses no information that would further this particular grand jury investigation, and therefore is being unfairly targeted by the oppressive government. According to Koch, the Government subpoena was based upon his political beliefs and would be used by the Government to obtain protected information about his activist associates.

This Court denied Koch's motion, in part because it was utterly groundless both in law and in fact. See Sealed Order of May 15, 2013. Koch's theory of this matter is a delusion of grandeur. There is simply no evidence that the Government, threatened by Koch's subversive prowess, seeks to bring him before the grand jury on a pretext, either to gain access to the treasure trove that is his circle of friends or to send an ominous message to political dissidents. See In re Jean-Baptiste, No. M 11-188, 1985 WL 1863, at *2 (S.D.N.Y. July 5, 1985) (Leisure, J.) (" Even if it were true that grand juries routinely are used as instruments for suppressing legitimate dissent . . . I have been provided with no evidence, by affidavit or otherwise, that the grand jury in this case was involved in anything other than an investigation into suspected criminal activities." ). Indeed, the evidence before this Court suggests the opposite. The Government set forth in a prior ex parte submission the basis for its belief that Koch may have knowledge about the incident that is the grand jury's concern. See Sealed Order of May 15, 2013.

Koch then moved for an order directing the Government to disclose its alleged illegal electronic surveillance of him. The Government responded by averring to the Court, under penalty of perjury, that there had been no electronic surveillance of Koch and that the subpoena compelling him to testify had not been predicated on any electronic surveillance of him. The Court therefore denied Koch's motion as

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meritless and, noting that he had been granted immunity, again ordered him to answer questions before the grand jury. See Order of May 20, 2013 (ECF No. 7.).

After Koch again refused to comply, this Court held a proceeding on May 21, 2013. The Court ultimately found him to be in contempt of court for violating the multiple Orders compelling him to testify despite receiving immunity from prosecution. He was confined later that day.

Koch next appealed this Court's contempt finding to the Second Circuit. See Koch, 2013 WL 6225042. The Circuit panel ruled that the Government " properly demonstrated that it seeks Koch's testimony related to the crime based on credible evidence that he may have information regarding the underlying events, and the information sought relates directly to the crime in question." Id. at *3. As to the propriety of the questions asked of Koch, the panel determined that they were not designed to unduly trample upon his First Amendment rights. " To the contrary, these questions focus specifically on his knowledge of the criminal conduct under investigation." Id. The Second Circuit thus summarily affirmed this Court in all respects.

Koch now seeks to be released from the MCC. He asserts that continued confinement will not induce him to cooperate with the grand jury, and so he would rather be freed today instead of at the end of the eighteen-month maximum set by Congress. See 28 U.S.C. § 1826(a).

II. Discussion

A. Legal Standards

1. 28 U.S.C. ยง 1826 and Simkin v. United ...

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