# In Re Grand Jury Matter, Antoni Gronowicz

> Court of Appeals for the Third Circuit · June 24, 1985 · 764 F.2d 983

URL: https://www.frixlaw.com/law-library/cases/9473613

## Case

- **Full name:** In Re GRAND JURY MATTER, Antoni GRONOWICZ, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 24, 1985
- **Citations:** 764 F.2d 983; 18 Fed. R. Serv. 239; 11 Media L. Rep. (BNA) 2249; 54 U.S.L.W. 2029; 1985 U.S. App. LEXIS 20125
- **Precedential status:** Published
- **Opinion:** Concurrence by Garth
- **Judges:** Gibbons, Garth, Becker, Hunter, Higginbotham, Sloviter
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473613

## How later opinions describe it (automated extraction)

- holding that there is “[n]o distinction having any first amendment significance” between criminal libel and civil libel or criminal fraud and civil fraud, for libelous or fraudulent speech both have no First Amendment protection in either the civil or criminal context

## Opinion text

GARTH, Circuit Judge,
concurring:
The majority opinion concludes that neither a common law nor a first amendment privilege protects Antoni Gronowicz, the target of a grand jury investigation from complying with a valid subpoena duces tecum. I concur, especially because my understanding of the majority opinion is that its constitutional holding is limited to answering the precise question: does any first amendment privilege protect the target (Gronowicz) of a grand jury investigation from producing documents sought by a subpoena duces tecum?
I write separately to emphasize the precise constitutional holding of the majority opinion because the arguments surrounding Gronowicz’s claimed first amendment privilege do not distinguish, as I believe they should have, between the various stages of a potential criminal proceeding, from grand jury investigation to indictment and through prosecution. I have found no authority or reason which would permit, let alone require, granting a first amendment evidentiary privilege to a grand jury target. I would therefore restrict any grand jury privilege which Gronowicz might assert to that provided by the fifth amendment.
Stated simply, my position is that no first amendment privilege may be claimed by a target of the grand jury even when that target is the author of a writing or a book. On the other hand, once an indictment is returned as a result of a grand jury investigation (if one ever is) and once a prosecution is mounted based on such an indictment, then I am persuaded that a first amendment challenge may be asserted to the indictment, the statute on which it is based, and perhaps even to the prosecution of that indictment itself. I do not regard this as a rule of exhaustion, but rather as one of unavailability, since in the context of a grand jury investigation, satisfaction of the Schofield requirements ensures that a subpoena does not issue in bad faith. The Schofield rule, when met, thus supplies all the initial first amendment protections needed before a grand jury.
Here, of course, I emphasize that we are not called upon to address or consider the merits of a first amendment challenge attacking the validity of an as yet hypothetical indictment, or the statute on which it may be predicated. Nor in this case are we asked to consider the constitutional propriety of an equally hypothetical prosecution. We are merely asked to decide whether a privilege grounded in the first amendment must be honored in the context of a grand jury investigation. The majority opinion cogently explains why no claimed privilege applies in the present case, where the subpoena itself comports with the Schofield rule. I need not repeat the majority’s analysis. I would only add that when it is remembered that our decision affects the range of evidentiary privileges available to the target of a grand jury investigation, the soundness of the majority’s holding becomes apparent.
Gronowicz, as the target of a grand jury investigation, has always possessed a personal fifth amendment privilege to refuse *990 compliance with the instant subpoena. 1 The assertion of a first amendment eviden-tiary privilege is thus not only unnecessary for someone in Gronowicz’s position, but, I believe, it is wholly unavailable before a grand jury. 2 Had this court been asked to decide the availability of some other constitutionally based evidentiary privilege claimed by the target of a grand jury investigation, I have little doubt that it would have concluded that the fifth amendment privilege made assertion of another constitutional privilege redundant. That Gro-nowicz claims a privilege founded on the first amendment should not change this result.
In light of the Supreme Court’s pronounced reluctance to create new evidentia-ry privileges, see Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972), and the broad sweep of legitimate grand jury inquiries, see United States v. Calandra, 414 U.S. 338, 343 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), Gronowicz, in my opinion, must be remitted to his already extant privilege under the fifth amendment. In the present context of a grand jury investigation seeking document disclosure, any assertion of his first amendment claims is premature.
I deliberately express no opinion as to the constitutional propriety of any indictment that might ultimately issue from the grand jury because, as I have earlier noted, that issue is not before us. I observe, however, that should an indictment issue, the first amendment challenge that Gro-nowicz has made here, and the arguments supporting that challenge, may more appropriately be raised by him as a direct attack on the constitutionality of the mail fraud statute as applied. Nothing which we have said, either in the majority opinion or in this separate opinion, restricts Gro-nowicz’s first amendment protections in the latter stages of a criminal proceeding. However, no first amendment privilege, nor indeed any privilege other than a fifth amendment privilege, can currently protect Gronowicz from complying with the grand jury’s subpoena duces tecum.
. As the majority has noted, Gronowicz has not to this date pleaded a fifth amendment privilege. See maj. op., typescript at 4, n. 1.
. Gronowicz’s status, as the target of the investigation, distinguishes this case from other cases in which a qualified common-law privilege was accorded third-party witnesses asked to reveal confidential sources. See United States v. Cuthbertson, 651 F.2d 189 (3d Cir.) (Cuthbertson II), cert. denied sub. nom. Cuthbertson v. CBS, 454 U.S. 1056 , 102 S.Ct. 604 , 70 L.Ed.2d 594 (1981); United States v. Criden, 633 F.2d 346 (3d Cir. 1980), cert. denied sub. nom.; Schaffer v. United States, 449 U.S. 1113 , 101 S.Ct. 924 , 66 L.Ed.2d 842 (1981); United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980) (Cuthbertson I), cert. denied sub. nom. Cuthbertson v. CBS, 449 U.S. 1126 , 101 S.Ct. 945 , 67 L.Ed.2d 113 (1981); Riley v. City of Chester, 612 F.2d 708 (3d Cir.1979).
To the extent that Justice Powell's concurring opinion in the Supreme Court's plurality decision in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972) leaves open the possibility that a first amendment privilege might protect a newsman called to testify before a grand jury whose investigation was not undertaken in good faith, Branzburg is also inappo-site. Here satisfaction of the Schofield rule precludes assertion that the investigation is pursued in bad faith. Branzburg , it must be pointed out, did not hold that a first amendment privilege was available in a grand jury context even where the party subpoenaed was not the target of the investigation. A fortiori, Branzburg did not hold that a first amendment privilege was available to a grand jury target, who undeniably retains a fifth amendment privilege.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473613. Public record. Not legal advice.