Petition — Blasi v. United States

- Supreme cornu. S \ |

4 FILED

} MICHAEL RODAK, iR., CLERK

In THe

Supreme Court of the Anited States

Ocroser TERM, 1978

TBH 1857

IN RE DOMINIC BLASI, A WITNESS

BEFORE THE

SPECIAL SEPTEMBER 1978, GRAND JURY,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MILTON K. JOSEPH

9701 S. Higgins Road

Rosemont, Illinois 60018

(312) 692-3346

WAYNE B. GIAMPIETRO

134 N. LaSalle Street

Chicago, Illinois 60602

(312) 236-0606

Attorneys for Petitioner

Of Counsel:

DeJone, Pottrook & GiAMPIETRO

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

AU OO PT ccs cnsenccccenesovencsnsevecovecece ii

EES 2

JURISDICTION SCRE 3

QUESTIONS PRESENTED 3

STATEMENT OF FACTS 4

REASONS FOR GRANTING THE WRIT:

I,

The Denial Of An Evidentiary Hearing To Peti-

tioner Violated His Right To Due Process Of Law

II.

Petitioner Was Denied The Opportunity To Show

That ‘‘Use’’ Immunity Is Not Equivalent To The

Fifth Amendment

II,

Petitioner Was Denied His Right To Counsel ........

CONCLUSION

APPENDIX A—District Court Order Committing Re-

spondent To Custody Of U. S. Marshall

APPENDIX B—Order Of The Seventh Cireuit Affirm-

ing The Decision Of The District Court

8

12

Sn gan gy Tit ee ae meer ee. ere ee

il

TABLE OF AUTHORITIES

Cases

Anonymous Nos. 6 & 7 v. Baker, 360 US 287, 296, 79

BR BERT, Se ND eck iieceientincieiiteds-neegteasichensadads 18

Blackburn v. Alabama, 361 US 199, 80 S.Ct. 274 (1960) 20

Boyd v. United States, 116 US 616, 635 (1885) .............. 15

Counselman v. Hiteheoek, 142 US 547, 586 (1892) .......... 12

Crooker v. State of California, 347 US 433, 439, 78 S.

Ct. TEST, Tae CRS eit ete 18

Doyle v. Ohio, 426 US 610, 618, 96 S.Ct. 2240, 2245

fj Oe RW ate MR STN Fone oR MCL Oe 20

Fscobedo v. Tllinois, 378 US 478 (1964) 2.0.0... eee 16

Ferguson v. State of Georgia, 365 US 570, 81 S.Ct.

FOO CD eo ceciesntdepatenita ne ce shee at 18

Gideon v. Wainright, 372 US 335, 83 S.Ct. 792 (1963) .. 17

Glasser v. United States, 315 US 60 (1942) 000. 18

Harris v. United States, 382 US 162, 166-67, 86 S.Ct.

BUI HUI ~ 22. spscsesiedacctchs vatwistdantaesbicecmbbclemcheaibasbaisiaaticlammaiia 9

In Re Groban’s Petition, 352 US 330, 333, 77 S.Ct.

UN ME CIEE icolatesciciecins cages ccasmasasctanesbipcantinontstalte 18

In Re Oliver, 333 US 257, 68 S.Ct. 499 (1948) -..00.000.. 9

In Re Sadie, 509 F.2d 1252, 1255 (2nd Cir. 1975) .......... 11

Johnson v. Zerbst, 304 US 458, 463 (1938) ............00....... 18

Kastigar v. United States, 406 US 441 (1972) ............. 12

Miranda v. Arizona, 384 US 486 (1966) .............0...0...... 16

Moore v. Michigan, 355 US 144, 78 S.Ct. 191 (1957) ..... 17

Rogers v. Richman, 365 US 534, 81 S.Ct. 735 (1961) ... 21

Tllmann v. United States, 350 US 422, 426 (1955) ........ 12

United States v. Alter, 482 F.2d 1016, 1023 (1973) ........ 8,9

United States v. Dinsio, 468 F.2d 1392 (9th Cir. 1972). 9

United States v. Mandujano, 425 US 564, 603, 95 S.

EE: FE CD cincclclaidctacenleditescuitig ee cecil oateaianaies 16

Tnited States v. Mandujano, supra at 572, 96 S.Ct. at

SO cenncstsccnsianisschccasaiatcsesdaabdehe Sabana arate ae Tc aati erate atanti 17

Miscellaneous

Noyes & Kolb, Modern Clinical Psychiatry, (6th ed.

TIPU D...: siccccureninctitindbiiniitieapiishiiniieaihiainsiietttlinee tienda 13

In Tue

Supreme Court of the United States

Ocroser Term, 1978

No.

IN RE DOMINIC BLASI, A WITNESS

BEFORE THE

SPECIAL SEPTEMBER 1978, GRAND JURY,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

To The Justices Of The Supreme Court Of The United

States:

Petitioner, Dominic Blasi, respectfully prays that a

Writ of Certiorari issue to review the decision and order

of the United States Court of Appeals for the Seventh

Circuit affirming a judgment of the United States

District Court for the Northern District of Illinois

finding Petitioner in contempt for failure to respond to

questions before the Grand Jury and ordering him

incarcerated until he should purge himself of that

contempt.

~

Petitioner was subpoenaed to testify before the Special

September, 1978, Grand Jury. He refused to respond to

questions put to him, invoking his right to silence under

the Fifth Amendment to the United States Constitution.

He was subsequently granted immunity pursuant to 18

U.S.C. Sections 6002 and 6003. After having received

this grant of immunity, Petitioner persisted in refusing

to answer questions propounded to him by the Grand

Jury, relying upon his right to silence as guaranteed

under the Fifth Amendment. The Government peti-

tioned the court to find Respondent in contempt for this

refusal to answer. The District Court, without granting

Petitioner an evidentiary hearing of any kind, and

without making any findings of fact, ordered Respond-

ent into custody of the United States Marshall until such

time as he agreed to answer questions propounded by

the Grand Jury, or until the term of the Grand Jury

expired, but in no event longer than 18 months.

The United States Court of Appeals for the Seventh

Circuit affirmed this judgment. It held that the factual

and legal issues presented were not of such complexity

as to require an evidentiary hearing.

OPINIONS BELOW

The District Court issued no opinion. The minute

order embodying the judgment of the District Court is

reproduced as Appendix “A” to this Petition. The United

States Court of Appeals for the Seventh Circuit affirmed

the decision of the District Court in an order which was

not published. This order is reproduced as Appendix “B”

to this Petition.

=

JURISDICTION

—_

The United States Court of Appeals for the Seventh

Circuit issued its order on March 16, 1979. The

jurisdiction of this Court rests on 28 U.S.C., § 1254(1).

QUESTIONS PRESENTED

1. Whether it is a violation of due process of law to

commit a witness to jail for contempt of court for

refusing to answer questions propounded by a special

grand jury without affording him an _ evidentiary

hearing.

2. Whether it is a violation of the Fifth and Sixth

Amendments to the United States Constitution to deny a

witness before a grand jury the right to have counsel

accompany him into the grand jury room.

3. Whether the “use” immunity under 18 U.S.C..

§§ 6002 and 6003 is equivalent to the privilege to remain

silent guaranteed by the Fifth Amendment to the

United States Constitution.

4. Whether the exception from prosecution for per-

jury or false statement contained within-—a grant of

immunity to a grand jury witness under 18 U.S.C..

§§ 6002 and 60038 is equivalent to the privilege to remain

silent guaranteed by the Fifth Amendment to the

United States Constitution.

—

STATEMENT OF FACTS

+

Petitioner was served with a subpoena requiring him

to appear before the Special September, 1978, Grand

Jury. He did appear in response to that subpoena but

refused to answer questions propounded to him, citing

his right to silence as guaranteed by the Fifth

Amendment to the. Constitution. On the date that he

appeared and refused to answer questions, the United

States Attorney appeared before the District Court and

presented a petition for an order granting Petitioner

immunity, pursuant to Title 18 U.S.C., §§ 6002-6003. that

petition, which was not verified, nor supported by

affidavit, recited that the Grand Jury was conducting an

investigation “of alleged illegal activities in this district,

involving, among others, association with and con-

ducting the affairs of an enterprise through a pattern of

racketeering activity, that is, murder in violation of

state law.” The petition went on to recite that Peti-

tioner’s testimony “is necessary to the public interest, as

is the production of books, papers or other evidence he

may have in his possession or control.” The subpoena

which had been served on Petitioner had not requested

the production of any documents. The District Court

entered the order granting Petitioner immunity, re-

fusing to allow Petitioner to argue in opposition to that

grant, stating that there would be plenty of time to raise

any issues and to have a full hearing should the

Petitioner refuse to testify despite the immunity.

Petitioner returned to the Grand Jury room and again

refused to respond to questions put to him. On that same

date, the United States Attorney returned to the District

Court, orally informing the court that Respondent

—5—

refused to answer questions and made an oral motion for

Rule to Show Cause why Petitioner should not be held in

contempt. The District Court ordered the United States

Attorney to file a written petition and set a hearing on it

seven days later. Petitioner’s counsel did not receive a

copy of the written petition until two days before that

hearing.

On the day before the hearing on the petition, counsel

for Respondent moved to continue the hearing for a

period of fourteen days in order to prepare a defense.

The court ordered counsel for Petitioner to file a

response to the written Petition for Rule to Show Cause

within two days.

Counsel for Petitioner filed their response within the

time ordered by the court in which they raised the

following issues among others:

A. The grant of immunity given to the Re-

spondent was not co-extensive with his Fifth

Amenament right in that it subjected him to

possible allegations and criminal charges for al-

leged offenses of perjury and false statement.

B. Requiring the witness to appear and answer

without advance warning of the subject of the

investigation subjected him to an unreasonable risk

of criminal prosecution for either perjury or false

statement.

C. Requiring him to appear and answer ques-

tions without advance information as to the subject

matter without the right to counsel violated his

rights under the Fifth and Sixth Amendments to

the United States Constitution.

D. Counsel for the United States had informed

counsel for Petitioner that the government had

made an extensive investigation of the subject

matter under Grand Jury investigation, that he

knew the “facts” surrounding the investigation and

—t—

that if Respondent did not testify to the “truth” as

known by counsel for the government, the govern-

ment would vigorously pursue a prosecution for

perjury against him.

The memorandum filed by counsel for Petitioner in

support of this response requested an _ evidentiary

hearing and set forth the basis for that hearing. Among

the reasons assigned was that the pressures placed upon

a witness before the Grand Jury could well cause him to

err in his testimony ®ven though he was trying to

answer truthfully. Thus, the result of his answers, even

though honestly given, could lead the government to

bring a charge of perjury or false statement because

those answers differed with the government’s view of

the facts of the situation.

When the matter next came before the District Court,

counse! for Petitioner specifically requested an evi-

dentiary hearing. The District Court refused to allow

Petitioner to introduce any evidence whatsoever. During

colloquy before the court, counsel for Petitioner stated

that they wished to present expert testimony as to the

psychology of recall, a discussion of how memory works

in the human mind, particularly in regard to a

statement by a witness that may be incorrect even

though he honestly believes the answer to be true,

because of the nature of the memory process. The

District Court rejected tender of this evidence.

The District Court again ordered Petitioner to appear

before the Grand Jury. The Petitioner did appear, and

again refused to respond to questions put to him. He was

again brought to the District Court on that same date.

Again, counsel for Petitioner requested an evidentiary

hearing. Again, the District Court refused. The court

and counsel proceeded to chambers, where the court

ae, Se

reporter from the Grand Jury read the questions which

had been asked of Respondent before the Grand Jury

that morning. The District Court thereupon entered an

order committing Petitioner to the custody of the United

States Marshall, “for incarceration until you shall have

determined to obey the order or until the Grand Jury

shall have discontinued its investigation of this matter,”

but in no event longer than eighteen months. The

District Court refused to stay the execution of its order.

An appeal was taken to the United States Court of

Appeals for the Seventh Circuit. The Court of Appeals

affirmed the decision of the District Court. While

recognizing that a witness who is faced with a petition

for contempt should be given a “meaningful opportunity

to raise his claims and have them determined by the

court,” the Court of Appeals held that an evidentiary

hearing is appropriate only if the witnesses’ defense

raises legal or factual issues of some complexity. The

Court of Appeals found that the issues raised in this case

were not of such complexity as to require an evidentiary

hearing. It held that the contempt proceedings below

did not violate due process.

—~§—

REASONS FOR GRANTING THE WRIT

I.

THE DENIAL OF AN EVIDENTIARY HEARING TO

PETITIONER VIOLATED HIS RIGHT TO DUE

PROCESS OF LAW.

Petitioner has been jailed. No specific order finding

him in contempt was ever entered by the District Court.

While the record leaves little doubt that the court felt

him to be in contempt, no formal order to that effect

was ever entered. Such failure is indicative of the entire

chain of proceedings before the Court. The government

was not required to show that the questions posed to

Petitioner were pertinent to the subject of inquiry before

the Grand Jury, or to make any showing other than that

unspecified questions had been asked which Petitioner

had refused to answer. Most fundamentally, the District

Court refused to grant Petitioner an evidentiary hearing

although he requested it at every stage of the

proceeding.

The denial of such hearing was based upon the court’s

theory that counsel did not intend to show specific facts

regarding the health or circumstances of Petitioner, but

was instead attacking the entire Grand Jury system.

The District Court conditioned the right to a hearing

upon Petitioner’s ability to show in advance of that hear-

ing that he would produce a defense to the Petition.

Such an approach turns the Constitution on its head. A

more fundamental and flagrant denial of due process

hardly can be imagined.

It is a basic tenet of our system that before a person

may be jailed for any reason he must be afforded com-

plete due process. In United States v. Alter, 482 F.2d

—~——

1016, 1023 (1973), it was’ held that all other con-

siderations must yield “to the paramount due process

_ right of a potential contemnor to have adequate notice

and a fair opportunity to defend himself.” In United

States v. Dinsio, 468 F.2d 1392, 1394 (9th Cir. 1972), it

was held that an alleged contemnor is entitled to an

“uninhibited and adversary hearing” before he may be

jailed. It was held there that Rule 42(b) F.R.CR.P.

applies in this type of situation and that all of its

procedural safeguards must be honored in every case.

This Court has reached the same conclusion on many

occasions. In Ja Re Oliver, 333 US 257, 68 S.Ct. 499

(1948), this Court held that in a situation such as this the

alleged contemnor has a right to reasonable notice of a

charge against him and an opportunity to be heard in

his defense, including “as a minimum a right to examine

the witnesses against him, to offer testimony, and to be

represented by counsel.” This Court went on to state that

it is “the law of the land that no man’s life, liberty or

property be forfeited as a punishment until there has

been a charge fairly made and fairly in a public

tribunal.”

This was more recently affirmed in Harris v. United

States, 382 US 162, 166-67, 86 S.Ct. 353, 355 (1965),

where this Court stated:

“What appears to be brazen refusal to cooperate

with the Grand Jury may indeed be a case of

frightened silence. Refusal to answer may be due to

fear—fear of reprisals of the witness for his family.

Other extenuating circumstances may be present

.... If justice is to be done, a sentencing judge

should know all the facts. We can imagine

situations where the questions are so inconsequential

to the Grand Jury but the fear of reprisal so great

that only nominal punishment, if any, is indicated.

—10—

Our point is that a hearing and only a hearing will

elucidate all the facts and assure a fair administra-

tion of justice. The Courts will not act on surmise or

suspicion but will come to the sentencing stage of

the proceeding with insight and understanding.”

The District Court here flagrantly ignored these fun-

damental principles. It denied Respondent a hearing

based upon its feeling, before any evidence had been in-

troduced whatsoever, that Petitioner could not possibly

prevail. How could the court know this unless it had

heard evidence? Certainly the right to a hearing cannot

be conditioned upon Petitioner’s first showing that he

would ultimately prevail upon such a hearing. Yet, this

is what the District Court required.

The Court of Appeals’ decision is clearly at odds with

the holdings in the other circuits, specifically the Ninth

Circuit. It condititoned the right to an evidentiary hear-

ing on the “complexity” of the legal or factual issues.

Without stating why, it merely concluded that the issues

presented here were not of such complexity as to require

such an evidentiary hearing. How such a decision can be

reached without having heard the evidence or testimony

is mystifying. The issues presented by Petitioner here

were not simple. They went to the very heart of the Con-

stitutional rights of witnesses called before the Grand

Jury. They presented issues of great Constitutional

magnitude under both the Fifth and Sixth

Amendments, as will be more fully developed hereafter.

Both Courts below have deprived Petitioner of the basic

essentials of due process—the right to be heard and the

right to confront their accusers. Absolutely no showing

was required of the government other than a conclusory

statement that the questions asked were relevant to the

investigation and were not answered. Such a holding

places it solely within the power of the Grand Jury to

| ee

ask any question which it might wish and cause a per-

son to be incarcerated without any showing that the sub-

ject matter of the questions was proper. Such an ap-

proach turns our Grand Jury, which was designed to

protect our citizens, into a star chamber proceeding.

In approving the action of the District Court, the

Court of Appeals completely ignored the fact that

proceedings such as this are governed by Rule 42(b) of

the Federal Rules of Criminal Procedure. This was the

holding in Jn Re Sadie, 509 F.2d 1252, 1255 (2nd Cir.

1975), where it was specifically held that a witness

before the Grand Jury who persists in his refusal to

_ testify is entitled to the procedural regularities prescrib-

ed by that rule. An opportunity to present evidence to

attempt to avoid being incarcerated is not a mere

technicality. It is the very heart of the concept of due

process. Petitioner attempted to introduce expert

evidence to lay the factual groundwork for a Con-

stitutional challenge. That is not a meaningless formali-

ty. Petitioner was ready, willing and able to present that

evidence. He was not given an opportunity to do so. It is

obvious that there is a conflict amongst the Circuits as

to the rights of potential contemnors in Grand Jury

proceedings. The courts below have flagrantly ignored

the decisions of this Court which require a full and fair

evidentiary hearing. This Court must take this case to

declare once and for all that a person may not be jailed

without an opportunity to be heard in his own defense.

—{ =

PETITIONER WAS DENIED THE OPPORTUNITY

TO SHOW THAT “USE” IMMUNITY IS NOT

EQUIVALENT TO THE FIFTH AMENDMENT.

Petitioner attempted to lay the factual groundwork to

show that che use immunity granted under 18 USC,

§ 6002-6003 is not equivalent to the command of the

Fifth Amendment that no person shall “be compelled in

any criminal case to be a witness against himself”. This

Court has held that such command is “an important ad-

vance in the development of our liberty—one of the

great landmarks in man’s struggle to make himself

civilized.” Ullmann v. United States, 350 US 422, 426

(1955). The Fifth Amendment was designed to protect

the accused against infamy as well as against prosecu-

tion. Jd. at 450, dissenting opinion of Justice Douglas.

In Counselman v. Hitchcock, 142 US 547, 586 (1892),

the first case which dealt with an immunity statute in

relation to the Fifth Amendment, a unanimous court

stated that an immunity statute to be valid must “supply

a complete protection from all the perils against which

the Constitutional prohibition was designed to guard

.. .” (Emphasis supplied)

Subsequently, in Kastigar v. United States, 406 US

441 (1972), this Court without directly overruling

Counselman, has held that use immunity was sufficient

if indeed both “use and derivative-use immunity is co-

extensive with the privilege [of the Fifth Amendment].”

Id. at 459. :

Against this background Petitioner below sought to

show that use and derivative use immunity is not in fact

co-extensive with the rights guaranteed by the Fifth

Amendment. Such immunity still subjects a witness to

the risk of a future perjury prosecution or prosecution

=o

for false statement. That is not to say that anyone is

allowed or entitled to commit perjury. No one would so

contend. Nevertheless, the giving of oral testimony is

necessarily based on the witness’ memory and his

powers of observation. This is not a precise phenomenon

but one based on a number of variables, namely the

reception and registration of a mental impression, the

retention or preservation of the previously acquired im-

pression and the reproduction or recall of that impres-

sion. The prior decisions on this issue have all been bas-

ed upon the court’s impression without a medical or

scientific underpinning. This, of course, is due to the

fact that research on the nature of memory and recall is

only now beginning to bear fruit. Only within the last

few years have studies been conducted which begin to

demonstrate the way which memory works.

In Modern Clinical Psychology (Sixth Edition, 1977)

by Noys and Kolb, it is stated:

“The function by which data acquired and

presented to consciousness through the observations

of attention are stored, later to be summoned and

again presented to consciousness, known as

memory. For the purpose of description, it may be

considered as consisting of three processes, the

reception and registration of a mental impression;

the retention or preservation of the previously ac-

quired impressions; the reproduction or recall of the

impression. One must not conclude that memory is

a special and more or less isolated faculty. It is but

one aspect of that highly integrated part of the

behavior of the organism known as mental. It is ad-

justive in its purpose and tends to promote adapta-

tion with the minimum of effort by virtue of its role

in assisting the individual to profit by his ex-

perience. Largely as a result of the investigation of

abnorma! psychology, it is known that memory is

influenced by affect, the tendency being to modify it

oY

in the interest of the emotional needs of the in-

dividual. (P. 88)

* * *

“Paramnesia, or falsification of memory, as well

as distortions of memory also serves as protection

against intolerable anxieties. (P. 90)

* * *

“RETROSPECTIVE FALSIFICATION. Of different

psychological significance are the retrospective

falsifications or illusions of memory, created in

response to affective needs. We all tend to em-

broider the truth in accordance with these needs, or

unconsciously to select those memories which suit

our interests. Two persons who have intense but

different emotional attitudes to a certain event or

experience will relate quite different accounts of

the circumstances. Both persons may be honest, but

each will remember details in harmony with his

emotional needs and forget those not consistent with

his affects. . . . Defensive distortions of recall may

serve to avert threat... . (P. 90)

It cannot be doubted that a witness before the Grand

Jury in a criminal investigation is under great tension,

anxiety and stress. The record in this case shows that

the subpoena served on Petitioner did not inform him of

the subject matter of the investigation. There is no

showing in the record that he was ever informed of this

subject matter. Even if he would agree to answer all

questions asked, he would still be subject to the

problems of recall. He might well answer a question

honestly as he remembered, but nevertheless, incor-

rectly. If he would subsequently be indicted for perjury,

he would have the burden of convincing the Judge or

jury that he did not intentionally answer the questions

falsely. This is the risk that makes the immunity

statute—whether it be transactional or use immunity—

not co-extensive with the Fifth Amendment privilege.

—15—

The witness in this case requested an opportunity to

introduce expert testimony on this subject of the nature

of the memory as above outlined. The court denied this

request. This evidence would lay a foundation for a

reconsideration of the rulings in the cases regarding the

type of immunity which is required in order to be co-

extensive with the Fifth Amendment privilege. It would

support the holding in Boyd v. United States, 116 US

616, 635 (1885), that “Constitutional provisions for the

security of persons and property would be liberally

construed.” It would enable the court to take a fresh

look at the Fifth Amendment, not on the basis of

argument, but from the viewpoint of scientific and

psychological evidence and facts. The court below

denied Petitioner the opportunity to lay this foundation.

Indeed, the Court of Appeals did not even refer to this

issue in rendering its decision. To say that this is not a

complex issue is to deny all reality.

Nor, was Petitioner’s apprehension in this regard

unfounded. His attorney was warned by the prosecutor

conducting the Grand Jury proceedings, that the

government knew the true facts and that unless

Petitioner testified in accordance with their perception of

these facts he would be prosecuted for perjury. Thus,

apprehensions of the fallibility of memory leading to a

charge of either perjury or false statement were not

abstract ones. Petitioner was specifically faced with an

overt threat of the government that unless his recall

coincided with the preconceived ideas of the govern-

ment, he would be prosecuted. To deny him the

opportunity to present evidence on this issue is a clear

and flagrant violation of due process of law. This Court

must declare that no matter how novel the issues

presented by the alleged contemnor, he at least has the

—16—

opportunity to present them and to substantiate them by

evidence which he is prepared to produce. Anything less

would be to deprive witnesses before the Grand Jury of

any protection whatsoever.

a ee WAS DENIED HIS RIGHT TO COUN-

At his last appearance before the Grand Jury,

Petitioner requested permission to have counsel present

with him in the Grand Jury room. This was denied. On

many occasions before the District Court, counsel

explained their reasons as to why they felt their

presence was necessary before the Grand Jury. The

right to counsel before the Grand Jury has never been

decided definitively by this Court. In United States v.

Mandujano, 425 US 564, 603, 96 S.Ct. 1768, 1789 (1976),

Justice Brennan, concurring, stated that this issue had

never been decided squarely by this Court. He observed

that the decisions of this Court in Miranda v. Arizona,

384 US 436, (1966) and Escobedo v. Illinois, 378 US 478

(1964), “recognizing the ‘substantive affinity’ and there-

fore the ‘coextensiveness’ in certain circumstances of the

right to counsel and the privilege against compulsory

self-incrimination” have lead many to question the

continuing vitality of older dicta which seem to indicate

that a witness is not entitled to counsel while testifying

before a Grand Jury.

It is clear that this issue raised by Respondent is not

frivolous but is substantial and serious. How the District

Court and the Court of Appeals could have concluded

that Petitioner would be totally unable to prevail on

such a contention is difficult to fathom. In any event,

that does not justify the failure to grant a hearing to

eo

allow Petitioner the opportunity to show the factual

reasons why such a right to counsel is required.

An examination of the principles at issue here show

that the issues are not simple. They are indeed complex.

The justification for the wide latitude granted to the

Grand Jury has always been that it provides a basic

guarantee of individual liberty and a protection to the

individual citizen functioning as a barrier to reckless or

unfounded charges; that “its historic office has been to

provide a shield against arbitrary or oppressive action,

by insuring that serious criminal accusations will be

brought only upon the considered judgment of a

representative body of citizens acting under oath and

under judicial instruction and guidance.” l/nited States

«. Mandujano, supra, at 572, 96 S.Ct. at 1774. However,

there is a serious doubt as to whether that historic

description of the Grand Jury is accurate or viable to-

day.

The right to counsel is one which this country has

cherished from its beginning. It is a right protected not

only under the Sixth Amendment, but the due process

clause of the Fifth Amendment as well. Thus, in Moore

“. Michigan, 355 US 155, 78 S.Ct. 191 (1957), this Court

observed that the right to counsel is not confined to

representation during a trial on the merits of a criminal

charge, but rather “where the circumstances show that

{a person's] rights could not have been fairly protected

without counsel, the due process clause invalidates his

conviction.” Thus. in Gideon v. Wainright, 372 US 335,

83 S.Ct. 792 (1963) this Court reaffirmed the fundamen-

tal character of the right to the aid of counsel, holding

that one unable to afford retained counsel must have

counsel appointed for him at the cost of the state.

—18—

Cases which have held that a witness at an in-

vestigatory hearing is not necessarily entitled to counsel

have proceeded upon the assumption that his rights are

well protected by the Fifth Amendment right to silence.

Anonymous Nos. 6 & 7 v. Baker, 360 US 287, 296, 79

S.Ct. 1157, 1162 (1959); Jn Re Groban’'s Petition, 352 US

330, 333 77 S.Ct. 510, 513 (1957).

The right to counsel of one’s choosing is not merely

applicable to the trial of a criminal proceeding itself,

but applies to any part of pre-trial proceedings where the

absence of counsel would so prejudice the individual as

to infect his subsequent trial with the absence of “that

fundamental fairness essential to the very concept of

justice.” Crooker v. State of California, 347 US 433, 439,

78 S.Ct. 1287, 1292 (1958). This Court has invalidated

several types of proceedings where counsel was not af-

forded. See, e.g., Glasser v. United States, 315 US 60

(1942) and Ferguson v. State of Georgia, 365 US 570, 81

S.Ct. 756 (1961).

The reasons for the right to counsel were set forth

well by this Court many years ago in Johnson v. Zerbst,

304 US 458, 463 (1988):

“The *. .. right to be heard would be, in many

cases, of little avail if it did not comprehend the

right to be heard by counsel. Even the intelligent

and educated layman has small and sometimes no

skill in the science of law. If charged with crime, he

is incapable, generally of determining for himself

whether the indictment is good or bad. He is un-

familiar with the rules of evidence. Left without the

aid of counsel he may be put on trial without a

proper charge and convicted upon incompetent

evidence, or evidence irrelevant to the issue or

otherwise inadmissible. He lacks both the skill and

knowledge adequately to prepare his defense, even

though he have a perfect one. He requires the

—19~

guiding hand of counsel at every step in the

proceedings against him.’ The Sixth Amendment

withholds from Federal Courts, in all criminal

proceedings, the power and authority to deprive

an accused of his life or liberty unless he has or

waives the assistance of counsel.”

While those statements were made in the context of a

criminal charge a!ready brought, they apply as well to

the situation in which Petitioner finds himself. He has

now been deprived of his right to silence under the Fifth

Amendment, by the grant of immunity. Yet, that im-

munity is not all-encompassing. It still allows him to be

prosecuted for perjury or false statement. Thus, his

statements may cause him to be subjected to further

criminal proceedings. This Court has clearly held that

the Fifth Amendment privilege does not condone per-

jury. Yet, we would submit to the Court that a person

may be charged with perjury and forced to defend

himself even though he has attempted to answer all

questions honestly and forthrightly. As shown to the Dis-

trict Court, this Petitioner has already been threatened

with criminal charges against him, even though he has

not said one word. The prosecutor has already told

Petitioner's counsel that they know what the truth is,

and that if Petitioner does not testify in conformity with

their pre-formed concept of that truth, criminal

proceedings will be brought against him. Significantly.

this assertion has never been denied by the government.

The evidence in this record shows that the prosecution

is not merely seeking information from Petitioner, but is

seeking to force him to make statements upon which

they can base a criminal prosecution. Petitioner desired

to show at a hearing before the court that to appear

before the Grand Jury, alone, without counsel, under

these circumstances, makes it more likely that he will

—20—

give testimony which can be mistaken or erroneous,

even though he honestly attempts to answer truthfully

or in good faith. He was denied that opportunity. Clear-

ly, in that circumstance, the grant of immunity does not

give him the equivalence to the shield which the right to

silence as afforded by the Fifth Amendment would. If

allowed to remain silent, there is no possibility that he

may commit perjury, since silence, at most is ambiguous.

Such silence could never be used against him in any

criminal proceeding. Doyle v. Ohio, 426 US 610, 618, 96

S.Ct. 2240, 2245 (1976).

The District Court and the Court of Appeals have now

required Petitioner to speak, placing him in jeopardy of

being accused of a criminal offense. The very act which

would form the offense is being compelled by the court.

To hold that this is not a critical stage of the

proceedings is to ignore all reality. Certainly, the

presence of counsel with whom one may confer so as to

form his answers in a proper and appropriate manner

could well prevent the witness from committing a crime.

A more critical situation can hardly be imagined.

The courts have long recognized that psychological

pressure may be just as coercive as physical torture. A

hearing before the court would have given Petitioner an

opportunity to show that the psychological pressures to

which a witness is subjected before the Grand Jury are

such as to make it imperative that counsel be present to

guide him. As was observed by this Court in Blackburn

v. Alabama, 361 US 199, 80 S.Ct. 274 (1960), “a prolong-

ed interrogation of an accused who is ignorant of his

rights and who has been cut off from the moral support

of friends and relatives is not infrequently an effective

technique of terror.”

_

Respondent was deprived of even an opportunity to

show to the District Court that the Grand Jury

procedures as they existed in this case were so cooercive

as to require the presence of counsel, as required under

both the Fifth and Sixth Amendments. Not only may

the witness not know how to represent himself, but he

may unwittingly commit an act which is a crime, which

could be forestalled and completely prevented if counsel

were present to assist him in answering properly.

Counsel may be necessary to object to tricky question-

ing, deliberately ambiguous statements, brow-beating,

and the like. Indeed, the presence of counsel may not

only make the difference between a perjury or false

statement indictment being brought, but also the

difference between guilt and innocence. What could

possibly be more critical?

This Court has held that confessions which are in-

voluntary are prohibited by the Fourteenth Amend-

ment, not because they are unlikely to be true, but

“because the methods used to extract them offend an un-

derlying principle in the enforcement of our criminal

law: that ours is an accusatorial and not an inquisitorial

system—a system in which the state must establish guilt

by evidence independently and freely secured and may

not by coercion prove its charge against an accused out

of his own mouth.” Rogers v. Richman, 365 US 534, 81

S.Ct. 735 (1961). Where due process does not allow the

government to extract an admission of guilt involuntari-

ly from a person, how can it allow the government to ex-

tract the commission of an offense from one involun-

tarily?

Psychological pressure and mistreatment, while

different from physical brutality, are just as abhorrent

and just as inimical to our free society and our basic

concept of due process of law and justice. Respondent

here was not even given an opportunity to introduce

evidence to show that the pressures contemplated here

would cause him such psychological pressures as to

render the Grand Jury proceedings unfair without the

guiding hand of counsel. At the very least he was en-

titled to present the evidence to support this claim. The

District Court’s justification that the evidence proffered

by Petitioner might cause a change in the Grand Jury

system as presently existing is no reason to deny him the

most basic rights of due process—an opportunity to be

heard in his own defense. The Court of Appeals’ conclu-

sion that this Court has not yet declared the right to

counsel to be implicated by the Grand Jury proceedings

is similarly no reason to deny this Petitioner the oppor-

tunity to show that such right should be implicated.

This Court must declare, at the very least, that

Petitioner has the right to present the evidence which

would support such a Constitutional argument.

—13~

CONCLUSION

The procedures which led to the jailing of Petitioner

in this case are so devoid of due process as to be shock-

ing. The issues raised by him were substantial, serious

and of great Constitutional magnitude. They were

brushed aside as if they did not exist. The peremptory

jailing of Petitioner in violation of all procedural rights

and safeguards was a flagrant denial of the basic

tenets of our Constitution. The order of the United

States Court of Appeals for the Seventh Circuit should

be vacated and set aside and this cause should be

remanded to the- District Court with instructions to

grant a full evidentiary hearing and in the interim to

release Petitioner from custody.

Respectfully submitted,

MILTON K. JOSEPH

9701 S. Higgins Road

Rosemont, [llinois 60018

(312) 692-3346

WAYNE B. GIAMPIETRO

134 N. LaSalle Street

Chicago, Illinois 60602

(312) 236-0606

Attorneys for Petitioner

Of Counsel:

DeJonc, Pottrrock & GIAMPIETRO

APPENDIX TO PETITIONER'S PETITION

ee

—la—

APPENDIX “A”,

Name of Presiding Judge,

Honorable James B. Parsons

Cause No. 79 C 474 Date February 14, 1979

Title of Cause In re: Dominic Blasi, a witness before the

Special September 1978 Grand Jury —

ORDER

Government’s motion for Rule 6(e) disclosure to Mr.

Milton Joseph is granted. It is hereby ordered that Dominic

Blasi be committed to the Custody of the U.S. Marshall

until the witness obeys this order or until the Grand Jury

discontinues this investigation or shall have been dis-

charged of this matter but under no circumstances shall

the witness be detained more than 18 months.

—2a—

APPENDIX “R”

UNITED STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, Illinois 60604

(Argued March 13, 1979)

March 16, 1979.

Before

Hon. Tuomas E. Farrcuixp, Chief Circuit Judge

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Wituiam J. Bauer, Circuit Judge

IN RE: DOMINIC BLASI, a Witness before th

September 1978 Grand Jury, ore the Special

No. 79-1162 Respondent-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 79 C 474

James B. Parsons, Judge.

ORDER

This appeal is taken from a district court ju

finding the appellant, Dominic Blasi, to be in sy

refusing to testify before the Special September 1978

Grand Jury after receiving a grant of immunity. For the

reasons noted below, we affirm the judgment.

In his first major argument on appeal, Blasi challenges

on due process grounds the procedures that were followed

by the district court in granting him use immunity and

ordering him to testify before the grand jury. These pro-

cedures are governed by 18 U.S.C. § 6003, which requires :

—Ja—

(1) that the Attorney General or Assistant Attorney Gen-

eral approve the U.S. Attorney’s request for an order

granting immunity to an individual; (2) that the testi-

mony or other information from such individual is neces-

sary to the public interest; and (3) that such individual

has refused or is likely to refuse to testify on the basis

of his privilege against self-incrimination.

In this ease, the government’s petition for an order grant-

ing immunity recited that the grand jury was conducting

an investigation into alleged violations of 18 U.S.C. § 1962;

that, in connection with this investigation, the appellant’s

testimony was necessary to the public interest; and that

the appellant had appeared before the grand jury and as-

serted his privilege against self-incrimination. Attached

to the petition was the approval of the designate of the

Assistant Attorney General of the Criminal Division, De-

partment of Justice. On the basis of this showing, the dis-

trict court issued an order granting the appellant immunity.

Blasi argues, however, that these procedures were con-

stitutionally deficient in two respects. First, he claims that

the district court incorrectly interpreted its function in

reviewing the immunity petition as one that is ‘‘purely

ministerial.’’ Second, he argues that the government’s peti-

tion was inadequate because it failed to show that the

questions asked of him were relevant to the grand jury in-

vestigation.

On the first point, this Court has clearly held that the

district court’s function in reviewing an immunity petition

is indeed ministerial:

““The United States Attorney determines whether a

grant of immunity is in the public interest, and the

distriet court may not review that judgment. The court

may only scrutinize the record to ascertain that a re-

quest for immunity complies with the procedural] and

jurisdictional requirements of the statute. In these cir-

cumstances, there is little need for an adversary hear-

ing before the court approves a request for immunity,

because the court is exercising a ministerial function.’’

—4da—

Ryan v. C.1.R., 568 F.2d 531, 540 (7th Cir. 1977). As to

the second claim, we agree with the Fourth Circuit that

‘“‘when a witness has been granted the use immunity af-

forded by § 6002, the scope of the grand jury’s investiga-

tion is immaterial insofar as the witness’s Fifth Amend-

ment privilege is concerned.’’ In re Kilgo, 484 F.2d 1215,

1221 (4th Cir. 1973). This is true because the ‘“seope of

the use immunity afforded the witness corresponds with

the scope of the information obtained from the witness.”’

Ryan v. C.I.R., supra at 541. It follows, then, that, as a

constitutional matter, the government need not amplify

its allegations concerning the scope of the grand jury’s

investigation or the relevancy of the witness’s testimony

to that investigation. We thus find no constitutional de-

fects in the procedures followed by the district court in

granting the immunity petition.

The appellant next argues that the district court’s fail-

ure to hold a full evidentiary hearing in the contempt pro-

ceedings denied him due process of law. In this connection,

it is clear that a witness bears the burden of showing why

he should not be confined for contempt once the govern-

ment alleges that the witness was granted immunity and

thereafter refused to answer questions on the basis of his

Fifth Amendment privilege. United States v. Handler, 476

F.2d 709, 713 (2d Cir. 1973). It is equally clear that such

a witness should be given a ‘‘meaningful opportunity to

raise his claims [and have] them determined by the court.’’

In re Bonk, 527 F.2d 120, 127 (7th Cir. 1975).

To say this, however, is not to say that a determination

of just cause cannot be made in the absence of a full evi-

dentiary hearing. On the contrary, the courts have con-

sistently held that an evidentiary hearing is appropriate

only if the witness’s defense raises legal or factual issues

of some complexity. See, e.g., In re Sadin, 509 F.2d 1252,

1256 (2d Cir. 1975); In re Grand Jury Proceedings, 550 F.

2d 1240, 1242 (3d Cir. 1977) ; United States v. Alter, 482 F.

2d 1016, 1023 (9th Cir. 1973).

—5a—

From our review of the record, we are persuaded that

the appellant had an adequate opportunity to raise his

claims and have them determined by the court. Further-

more, we do not find that any of the factual or legal is-

sues were of such complexity as to require an evidentiary

hearing. We therefore conclude that the contempt proceed-

ings satisfied the requirements of due process.

As to the merits of the proceedings, we find no basis

for reversing the district court’s conclusion that Blasi had

failed to show cause for refusing to testify. The appellant

appears to argue that the grant of immunity was not co-

extensive with the privilege against self-incrimination since

he was still subject to prosecution for perjury. The short

answer to this argument is found in the Supreme Court s

decision in Kastigar v. United States, 406 U.S. 441 (1972):

‘¢We conclude that the immunity provided by 18 U.S.C.

6002 leaves the witness and the prosecutorial author-

ities in substantially the same position as if the wit-

ness had claimed the Fifth Amendment privilege. The

immunity therefore is coextensive with the privilege

and suffices to supplant it.’’

Id. at 462. Furthermore, this Court has consistently held

that a prosecution for perjury is constitutionally permis-

sible, even if the false statements are made while the wit-

ness is testifying under a grant of immunity. See, ¢.9., In

re Daley, 549 F.2d 469, 481-82 (7th Cir. 1976) ; United States

v. Patrick, 542 F.2d 381, 385 (7th Cir. 1976); In re Bonk,

527 F.2d 120, 125 (7th Cir. 1975).

The appellant also claims that he was impermissibly

denied the assistance of counsel in the grand jury room. It

is now clear, however, that a majority of the Supreme Court

finds no constitutional basis for a right to the assistance

of counsel in the grand jury room. Four members of the

Court have held that the constitutional right to counsel

is not implicated by grand jury proceedings, U nited States

v. Mandujano, 425 U.S. 564, 581 ( 1976), while a fifth has

suggested only that there is a constitutionally derived right

—§a—

to have counsel present for consultation outside the grand

jury room. Jd. at 608 (Brennan, J., concurring). In this

case, the appellant was given the opportunity to consult

with counsel outside the grand jury room at any time.

Accordingly, we find no constitutional error.

We have examined the appellant’s other arguments, and

find them without merit. We do grant, however, the appel-

lant’s motion to strike additional portions of the record

on the grounds that the documents were never made a

part of the proceedings in the district court, and we do not

find it necessary to consider them in reaching this opinion.

The judgment of the district court is

AFFIRMED.