Petition — Nigro v. United States

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82-1404 FEB 7 19°3

IN THE ALEXANDER L. STay,.§

CLERK

SUPREME COURT OF THE UNITED STATES pn

October Term, 1982

NO.

EDWARD ROBERT NIGRO, JR.,

(Real Party In Interest), Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN D. KAUFMANN

177 N. Church Avenue

1002 Transamerica Bldg.

Tucson, Arizona 85701

(602) 623-2016

JOHN P, OPPENHEIM

GERALD WEAVER & ASSOCIATES

50 S. Steele St., Suite 320

Denver, Colorado 80299

(303) 320-4279

Counsel for Petitioner

February 2, 1983

QUESTIONS PRESENTED

WHETHER STATUTORY IMMUNITY, 18 U.S.C

§6002, IS COEXTENSIVE WITH AND COM-

PREHENSIVE AS THE CONSTITUTIONAL

FIFTH AMENDMENT PRIVILEGE AGAINST

SELF-INCRIMINATION WHERE PETITIONER

FACES A REAL AND SUBSTANTIAL THREAT

OF FOREIGN PROSECUTION.

WHETHER GRAND JURY SECRECY AS RE-

QUIRED BY RULE 6 (e), FEDERAL RULES

OF CRIMINAL PROCEDURE CAN SUPPLANT

THE CONSTITUTIONAL PRIVILEGE AGAINST

SELF-INCRIMINATION BY NEGATING A

REAL AND SUBSTANTIAL FEAR THAT

SAID TESTIMONY WILL BECOME AVAIL-

ABLE TO FOREIGN JURISDICTION.

WHETHER 28 U.S.C. §1826 (a) AND DUE

PROCESS REQUIRE A RECALCITRANT

GRAND JURY WITNESS A MEANINGFUL

OPPORTUNITY TO SHOW "JUST CAUSE"

FOR REFUSING TO OBEY A COURT ORDER

TO TESTIFY.

WHETHER THE GOVERNMENT CAN USE

STATEMENTS ELICITED PURSUANT TO

PLEA NEGOTIATIONS AND RULE 11 (e)

(6), FEDERAL RULES OF CRIMINAL

PROCEDURE WHERE PETITIONER ENTERED

A PLEA OF GUILTY TO CHARGES INDE-

PENDANT OF THE NEGOTIATIONS AND THE

NEGOTIATIONS THEMSELVES DID NOT

RESULT IN ANY AGREEMENT

WHETHER THE GOVERNMENT COMPLIED

WITH THE "SHOWING REQUIREMENT" OF

18 U.S.C. §3504 (a) (1) BY MAKING

AN UNVERIFIED, HEARSAY STATEMENT

REGARDING THE LEGALITY OF ELECTRO-

NIC SURVEILLANCE AFTER THE EXISTENCE

OF JUDICIALLY UNAUTHORIZED

SURVEILLANCE IS ADMITTED

TABLE OF CONTENTS

Page

Opinion Below 2

Jurisdiction 2

Questions Presented 2

Statutory and Constutitional

Provisions Involved 4

Statement of the Case 4

Reasons for Granting the Writ

of Certiorari 10

Conclusion 24

Appendix 1 (Opinion of the Court

of Appeals)

Appendix 2 (Memorandum Opinion and

Order of the District Court)

Appendix 3 (Text of Statutes)

CITATIONS

Brady v. Maryland, 373 U.S. 83

(1963) 6, 15

In Re Baird, 668 F. 2d. 432

(8th Cir., 1982) (cert. denied

S. Court 2255 [1982]) 13

In Re Cardassi, 351 F. Sup. 1080

(D. Conn., 1972) 14

In Re Flannigan, No 82-6058

(2nd Cir., October 13, 1982) 13, 14

In Re Grand Jury Investigation

545 F. 2d. 385 (3rd Cir., 1972) 18

In Re Grand Jury Investigation,

610 F. 2d. 202 (5th Cir., 1980)

In Re Grand Jury Proceedings,

463 F. 2d. 226 (Sth Ciz., 1974)

In Re Grand Jury Proceedings,

491 F. 2d. 42 (D.C. Cir., 1974)

In Re Grand Jury Subpoenas, 573

F. 2d. 939 (reversed en banc 584

F., 2d. 1366 [6th Cirl, 1978])

In Re Lemieux, 597 F. 2d. 1166,

1167-68 (9th Cir., 1979) 43;

In Re Lochiatto, 497 F. 2d.

S03 (ist Cir., 1974)

In Re Mintzer, 5ll F. 2d.

473 (ise Cis. 2974)

In Re Parker, 411 F. 2d. 1067

(lOth Cir., 1969) (vacated as

moot sub. nom., Parker v. United

States, 397 U.S. 96 [1970])

In Re Quinn, 525 F. 2d. 222

(lst Cir., 1975)

In Re Sadin, 509 F. 2d. 1252

(Zag. Cir., 1975)

In Re Vigil, 524 F. 2d. 209

(20th Cir., 4975) 18,

Mishima v. United States, 507

F, Sup. 131 (D. Alaska 1981)

Murphy v. Water Front Commission

of New York Habor, 378 U.S. 52

(1964)

Society International v. Rogers,

357 U.S. 197, 21% (1958)

United States v. Alter, 482 F.

2d. 1016 (9th Cir., 1973) 18, 23

United States v. Brummitt, 665

PP. 24. 521, 525-26 (Sth Cir.,

1981) (cert. denied 102 S. Court

2244, [1982]) 13

United States v. Bowe, 491 F.

2d. 970 (8th Cir., 1974) 18

United States v. Fitch, 472 F.

24. 458 (9th Cri., 1973) 23

United States v. Gelband, 408

U.S. 41 (1972) 18, 22

United States v. Murdock, 284

U.S. 141, 149 (1931) 1l

United States v. Stevens, 510

FP. 26. 12101 (Sth Cir., 1975) 23

United States v. Trucis, 89

F.R.D. 671 (E.D. Penn, 1981) 13

United States v. Yanagita, 552

F. 2d. 840 (2nd Cir., 1977) 13

Zicarelli v. New Jersey Investi-

gating Commission, 406 U.S. 472,

478 (1972) ik, i2@, 13, 27

RULES

Rule 6, Federal Rules of Criminal

Procedure, Be Se Bu aae A8, 14, FO

Rule 11 (e) (6), Federal Rules

of Criminal Procedure, 3, 4, 5,10, 20,

STATUTES

18 U.S.C. §3500 (e) (3) 15

18 U.S.C. §3504 (a)(1) 3, 4,10, 22, 23

18 U.S.C. §6001 6

18 U.S.C §6002 2, 4, 8

28 U.S.C. §1254 2

28 U.S.C. §1826 (a) (1) 3, 4, 7, 17, 18

AMENDMENTS

Fifth Amendment, United States

Ceasszeucion 2, 4, 7, 9,10, 14, 18, 16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

NO.

EDWARD ROBERT NIGRO, JR., Petitioner

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIRORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner, EDWARD ROBERT NIGRO

JR., by and through undersiged counsel,

John D. Kaufmann, respectfully prays

that a Writ of Certiorari be issued to

review the judgment and opinion of the

United States Court of Appeals for the

Tenth Circuit entered in this proceeding

on December 16, 1982.

OPINION BELOW

The opinion of the Court of Appeals,

not yet reported, appears in Appendix l

attached hereto. A Memorandum Opinion

and Order was rendered by the District

Court of Colorado on November 10, 1982.

The Memorandum Opinion has not yet been

reported and a copy of said opinion

appears in Appendix 2 attached hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Tenth Circuit was entered on

December 16, 1982. A timely petition

for rehearing or in the alternative a

petition for rehearing en banc was denied

on January 11, 1983. This Petition for

Certiorari was filed within ninety (90)

days of that date. This Court's juris-

dction is invoked under 28 U.S.C. §1254

(1).

III

QUESTIONS PRESENTED

1. Whether statutory immunity, 18

U.S.C. §6002, is coextensive with and

comprehensive as the Constitutional Fifth

Amendment privilege against self-incrim-

ination where Petitioner faces a real

and substantial threat of foreign

prosecution.

2. Whether Grand Jury secrecy as

required by Rule 6 (e), Federal Rules

of Criminal Procedure can supplant the

constitutional privilege against self-

incrimination by negating a real and

substantial fear that said testimony

will become available to foreign

jurisdictions.

3. Whether 28 U.S.C. §1826 (a) and

due process requires a recalcitrant

Grand Jury Witness a meaningful opport-

unity to show "just cause" for refusing

to obey a court order to testify.

4. Whether the government can use

statements elicited pursuant to plea

negotiations and Rule 1l (e) (6), Federal

Rules of Criminal Procedure where

Petitioner entered a plea of guilty to

charges independant of the negotiations

and the negotiations themselves did not

result in any agreement.

5. Whether the government complied

with the "showing requirement" of 18 U.S.C

§3504 (a) (1) by making an unverified,

hearsay statement regarding the legality

of electronic surveillance after the

existence of judicially unauthorized

surveillance is admitted.

aBe

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

l. Fifth Amendment to the United

States Constitution.

2. 18 U.S.C, §6002 - Immunity.

3. 28 U.S.C. §1826 - Recalcitrant

Witness.

4. 18 U.S.C. §3504 (a) (1) -

Litigation concerning sources of evidence.

5. Federal Rules of Criminal

Procedure, Rule 6 (e) = Rule of Secrecy

and Exceptions.

6. Federal Rules of Criminal

Procedure, Rule 1l (e) (6) - Plea

Negotiations.

(Text of statutes found in Appendix 3.)

STATEMENT OF THE CASE

The Petitioner is a federal inmate

presently incarcerated at the Federal

Correctional Institute, Talladega,

Alabama. Prior to the subject case, the

Appellant had been convicted of multiple

counts in the Western District of Tenne-

sse and the District of Arizona. All

convictions concern marijuana importa-

tion schemes and the Petitioner was

eventually sentenced to terms ranging

up to fifteen (15) years.

wis

In October and November of 1981,

after his Tennessee conviction, but prior

to his Arizona change of plea, it became

apparent that Petitioner would face

additional charges arising out of the

District of Colorado. A discussion was

held in Arizona between officials from

the District of Colorado and MR. NIGRO.

The discussion was held under the pro-

phylactic protection of Rule 1l (e) (6),

Federal Rules of Criminal Procedure.

The conversations concerned matters

presently pending before a Federal Grand

Jury sitting in the District of Colorado.

All parties agree that the discussions

failed to result in an agreement.

Independant of these discussions, the

Petitioner plead guilty to charges

alleged in the District of Arizona

indictment.

By July of 1982, the government

elected not to indict the Petitioner

NIGRO. The government decided to use

MR. NIGRO'S testimony in securing

indictments and convictions for other

target Defendants. Pursuant to that

decision, the government issued a Writ

of Habeas Corpus Ad Prosequendum and

transported the Petitioner from

Talladega, Alabama to Denver, Colorado.

@Se

Prior to being brought before the

Grand Jury the Appellant filed numerous

motions to quash the Petition for Writ

of Habeas Corpus and to cppose any order

attempting to compel testimony. The

Petitioner was brought before the Grand

Jury on July 27 and July 28, 1982. On

all occasions, MR. NIGRO refused to

testify citing and invoking a number of

constitutional and statutory rights.

On July 28, 1982, the District Court

granted the Petitioner statutory immunity

pursuant to 18 U.S.C. §6001 et. seq.

MR. NIGRO continued to refuse to testify

citing the same statutory and constitu-

tional privileges. A briefing schedule

was set by the Court, calling for

September 27, 1982, as the last date

for either party to seek additional

relief. By September 20, 1982, the

Appellant had filed six (6) motions

directed at quashing the Writ of Habeas

Corpus Ad Prosequendum, one (1) motion

for discovery pursuant to Brady v.

Maryland, 373 U.S. 83 (1963) anda

Petition for Restraining Order. The

Petitioner requested evidenciary hearings

and informed the District Court of his

intent to subpoena out of state witnesses.

On Wednesday, September 22, 1982,

ag<

the District Court advised Appellant at

4:45 p.m. by telephone that a hearing

would be held on Friday, September 24,

1982 at 10:00 a.m. in the District of

Colorado. The 10:00 a.m., September 24,

1982 hearing was delayed for forty-five

(45) minutes. At the beginning of the

hearing, the Court stated Appellant

would have twenty (20) minutes to

highlight and summarize his position

on all matters. This Petitioner com-

plains that due process and 18 U.S.C.

§28-1826 (a) was violated by insuffi-

cinet notice and opportunity to be heard,

This is specifically true in this case

where time was not of the essence.

At the hearing, Petitioner present-

ed to the District Court various claims

relevant to this Petition for Certiorari.

The first matter concerned the Peti-

tioner's Fifth Amendment right agairst

self-incrimination. The District Court

held that MR. NIGRO:

Refused to answer questions

concerning illegal import

and export of money between

the United States and unnamed

countries; illegal laundering

of narcotic money inside and

outside the territorial

United States; illegal

laundering of narcotic money

through offshore corporations

wen

or banks; sources of money

received from operations of

narcotic operations.

The Petitioner maintained the statutory

grant of immunity, 18 U.S.C. §6002,

was not comprehensive as and coextensive

with the constitutional grant against

self-incrimination insofar as it could

not grant immunity extraterritorially.

The District Court held the Constitu-

tional Fifth Amendment privilege

applies only to restrain officials who

act under laws of the United States:

[T)hey (the constitution and

Fifth Amendment) o not

extend their protection

to persons who are subject

to prosecution by wholly

unrelated governments abroad.

Additionally, the District Court found

that MR. NIGRO was adequately protected

by the provisions of Rule 6 (e), Federal

Rules of Criminal Procedure, requiring

that Grand Jury testimony be kept secret

and, therefore, the Witness could not

have a real and substantial fear of

foreign prosecution.

The Tenth Circuit did not address

the issue of whether a constitutional

right existed, but did affirm the

District Court's position that Rule 6

(e) adequately protected against a real

and substantial fear of foreign prosecu-

tion. No other claims were addressed by

the Tenth Circuit. It affirmed, with-

out comment, all other decisions of the

District Court.

During the September 24, 1982 hear-

ing, the government ad,.itted that

Petitioner's telephone conversations had

been taped by the government prior to

his arrest in March of 1981. The Peti-

tioner claimed his surveillance was

unlawful and resulted in questions being

asked of Petitioner before the subject

Grand Jury. The Assistant U.S. Attorney

claimed the surveillance was done pursu-

ant to the statutory "consent" exception

to the warrant requirement. The

Assistant U.S. Attorney making this

claim was not associated with the ad-

mitted surveillance and was conveying

information to the court from unknown

sources. (Presumably another Assistant

U.S. Attorney.) In its Memorandum

Opinion, the District Court accepted

the hearsay statement of the non-

participating Assistant U.S. Attorney

and denied Petitioner an additional

hearing. In doing so, the District

Court held by implication the hearsay

statement complied with the "showing

afin

requisites" of 18 U.S.C. §3504 (a)(1l).

In regards tc the plea negctiaticns

the District Court found as follows:

All parties now agree these

discussions (regarding matters

pending before the subject

Grand Jury) were conducted

pursuant to Rule ll (e) (6),

Federal Rules of Criminal

Procedure. After these dis-

cussions failed to result in

any agreement, MR. NIGRO pro-

ceeded +o enter a guilty plea

in the United States District

Court for Arizcsna.

The Arizona case and the Colorado case

were separate and distinct. The District

Court held that the Arizona plea negated

governmental assurances under 11 (e) (6)

for the Colorado case and permitted the

use of information received in those

discussions to formulate questions before

the subject Grand Jury.

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

QUESTIONS 1 AND 2

THE COURT BELOW HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL

STATUTORY AND CONSTITUTIONAL

LAW WHICH HAS NOT BEEN, BUT

SHOULD BE SETTLED BY THIS COURT

The issue whether the Fifth

Amendment to the United States Constitution

a2@-

applies to foreign prosecution has

sporadically appeared before this

court since 1931. C.F. United States

v. Murdock, 284 U.S. 141, 149 (1931);

C.F. Society International v. Rogers,

357 U.S. 197, 211 (1958); C.F. Murphy

v. Water Front Commission of New York

Habor, 378 U.S. 52 (1964); Zicarelli v.

New Jersey Investigating Commission,

406 U.S. 472, 478 (1972). The specific

issue was addressed in one (1) case,

Zicarelli, supra. The court declined

to specifically rule on the applica-

tion of the constitutional right,

holding instead that the Petitioner in

Zicarelli had failed to establish

prerequisites to determining whether the

constitutional right did exist.

In Zicarelli, the court found two

(2) prerequisites to determining the

constitutional issue. The two (2)

prong test requires a Witness to

first make a prima facia showing that

a real danger exists of being compelled

to disclose information that might

incriminate the Witness under foreign

law and secondly, that a real and sub-

stantial danger of foreign prosecution

exists. In Zicarelli, the Petitioner

failed to show that the unanswered

-ll-

questions required disclosure of extra-

territorial crimes,

Based upon the findings of the Dis-

trict Court, Petitioner has met prong one

(1) of the Zicarelli test. The Appellate

Court avoided the constitutional issue

by hold Rule 6 (e), Federal Rules of

Criminal Procedure, prohibited the

Petitioner from facing a "real and sub-

stantail danger of foreign prosecution

based on his ordered testimony". The

Court further stated that Rule 6 (e),

makes irrelevant an inquiry into the

likelyhood of the risk of foreign

prosecutions that he, MR. NIGRO, may

face. In so holding, the Appellate

Court candidly admitted that MR. NIGRO

may find himself on the horns of a di-

lemma, but decides that the grant of

statutory immunity "protects the

Petitioner to some degree". The

specific holding by the Court below

is in direct conflict with decisions

of the Second Circuit and will be

discussed infra,

Since its decision in Zicarelli,

no circuit court has decided the con-

stitutional issue presented herein,

Although confronted by the issue, the

Fifth, Eighth and Ninth Circuits join

-12-

the Tenth Circuit in holding that the

secrecy proivions of Rule 6 (e) pre-

cludes the showing of a real and sub-

stantial fear of foreign prosecution,

See United States v. Brummitt, 665 F.

2d. 521, 525-526 (5th Cir., 1981),

(cert. denied, 102 S. Court 2244

{1982]); In Re Baird, 668 F. 2d. 432,

434 (8th Cir., 1982), (cert. denied,

102 S. Court 2255 [1982]); In Re Lemieux,

597 F. 2d. 1166, 1167-68 (9th Cir.,

1979). The Second Circuit, on the other

hand, has twice declined to reply upon

Rule 6 (e) and has, as the Supreme Court

did in Zicarelli, addressed the factual

issue of whether a real and substantial

danger exists of foreign prosecution,

In Re Flannigan, No. 82-6058 (2nd Cir.,

October 13, 1982); United States v.

Yanagita, 552 F. 2d. 840 (2nd Cir.,

1977). In both cases, the Second

Circuit determined that a real and

substantial danger of foreign prosecu-

did not exist and, therefore, failed

to address the constitutional issue.

Several District Courts have ruled

on the ultimate constitutional issue.

Mishima v. United States, 507 F. Sup.

131 (D. Alaska, 1981); United States v.

Trucis, 89 F.R.D. 671 (E.D. Penn., 1981);

In Re Cardassi, 351 F. Sup. 1080 (D.

Conn., 1972). These courts have upheld

the constitutional privilege against

self-incrimination where a real and sub-

stantial fear of foreign prosecution

exists. The issue of whether the Fifth

Amendment applies extraterritorially in

United States Courts is directly before

the Court and should, with this case,

be settled.

THE DECISION BELOW CONFLICTS WITH A

DECISION OF ANOTHER COURT OF APPEAL

AS TO WHETHER RULE 6 (e), FEDERAL

RULES OF CRIMINAL PROCEDURE CAN

SUPPLANT THE CONSTITUTIONAL PRIVI-

LEGE AGAINST SELF-INCRIMINATION BY

NEGATING THE FACTUAL PREREQUISITES

TO A REAL AND SUBSTANTIAL THREAT OF

FOREIGN PROSECUTION

As noted above, the Fifth, Eighth,

Ninth and Tenth Circuits avoid the con-

stitutional question by holding Rule 6

(e) precludes a real and substantial

fear of foreign prosecution. These

Circuits are in direct conflict with the

most recent decision of the Second Circuit

in In Re Flannigan, supra. In short, the

Second Circuit held:

We do not believe that Rule

6 (e) guarantees as a prac-

tical matter that Grand Jury

testimony will not be dis-

closed to a foreign power. Id.

while

The opinion of the Second Circuit

is well justified. See, In Re Lemieux,

supra, (concurring opinion of Judge

Hufstedler). Both the Sixth and Fifth

Circuits have criticized noted patterns

of leaks in Grand Jury proceedings. See

In Re Grand Jury Subpoenas, 573 F. 2d.

939 (reversed en banc 584 F. 2d. 1366

[6th Cir., 1978]); In Re Grand Jury

Investigation, 610 F. 2d. 202 (5th

Cir., 1980). The Computroller General's

Report to Congress of October 16, 1980

criticizes the lack of secrecy and

confidentiality before the Grand Jury.

See G.G.D. 81-18. In its report, the

Computroller General found disclosures

were not nevessarily made illegally

or surreptitiously but were allowable

or even required under existing laws

and procedures. Even the Tenth Circuit

recognized disclosure of the Petitioner's

testimony may be mandatory pursuant to

Brady v. Maryland, supra, the Jencks Act,

18 U.S.C. §3500 (e)(3) oF pursuant to

defense motions to dismiss based upon

the jeopardy clause of the Fifth

Amendment. Disclosure is the rule,

nondisclosure the true exception.

The issue before the Court is ripe

for decision. The circuits are divided

oi Se

as to the proper application cf Rule 6

(e) towards Grand Jury testimony that

presents a real and substantial fear of

foreign prosecution. Those Circuits

supporting Rule 6 (e) simply state that

statutory immunity coupled with pro-

phylactic protection of Rule 6 (e) is

equal to and coextensive with the con-

stitutional grant of immunity. On the

other hand, and in direct conflict with

these circuits, the Second Circuit holds

that 6 (e) cannot bolster or bootstrap

that statutory grant of immunity. The

grant of immunity must on its face be

coextensive with and equal to the con-

stitutional grant of immunity. These

conflicts justify the grant of certiorari

to review the judgment below. It is

Petitioner's contention that disclosure

of Grand Jury testimony is now the rule

and not the exception.

THE DECISION BELOW RAISES SIGNIFICANT

AND RECURRING PROBLEMS CONCERNING THE

CONSTITUTIONAL APPLICATION OF THE

FIFTH AMENDMENT IN UNITED STATES

COURTS ANT TO EXTERRITORIAL CRIMES

The Tenth Circuit's opinion in this

case reflects important statutory, consti-

tutional and policy considerations

growing out of bonafide efforts to invoke

oik~

and raise a constitutional claim against

self-incrimination. This Court had not

eddressed this issue since Zicarelli in

1972. Prior to Zicarelii, in 1970, the

court summarily dealt with the issue in

In Re Parker, 411 F. 2d. 1067 (10th Cir.,

1969), (vacated as moot sub. nom. Parker

v. United States, 397 U.S. 96 [1970]).

In Parker, the Tenth Circuit had held

that the Fifth Amendment does not apply

extraterritorially. The Supreme Court

vacated that decision. Since Parker and

Zicarelli, the issue has come before

numerous District Courts and Circuit

Courts. There is little or no uni-

formity in addressing the prerequisites

to raising the constitutional questions

or dealing with the constitutional

question itself. This case properly

raises those issues and should be

decided at this time.

QUESTION 3

THE COURT BELOW HAS SO FAR DEPARTED

FROM THE EXCEPTED AND USUAL COURSE

OF JUDICIAL PROCEEDINGS BY SANCTION-

ING A 28 U.S.C. §1826 (a) ORDER TO

SHOW CAUSE HEARING THAT PROHIBITED

THE RECALCITRANT PETITIONER FROM

HAVING A MEANINGFUL OPPORTUNITY TO

SHOW CAUSE WHY HE SHOULD BE BE HELD

IN CONTEMPT OF COURT

Due process of law has long been

recognized as the corner stone of the

American judicial system, jurisprudence

and philosophy. 28 U.S.C. §1826 provides

in part, for a hearing to determine if

a Witness has "just cause" in refusing

to comply with a court order. All

Circuit Courts have interpreted the

statute as requiring reasonable notice

and an adequate opportunity to raise

claims and have them determined by

court. See In Re Lochiatto, 497 F. 2d.

803 (lst Cir., 1974); In Re Sadin, 509

F. 2d. 1252 (2nd Cir., 1975); In Re

Grand Jury Investigation, 545 F. 2d. 385

(3rd Cir., 1976); United States v. Bowe,

491 F. 2d. 970 (8th Cir., 1974); United

States v. Alter, 482 F. 2d. 1016 (9th

Cir., 1973); In Re Vigil, 524 F. 2d.

209 (10th Cir., 1975); In Re Grand

Jury Proceedings, 491 F. 2d 42 (D.C.

Cir., 1974).

This Court in United States v.

Gelband, 408 U.S. 41 (1972) held that a

Grand Jury Witness had a meaningful

opportunity to present defenses to a

contempt citation at a contempt hearing.

The specific holding in Gelband stated

the use of an illegal electronic sur-

veillance constituted a valid defense

to a contempt proceeding pursuant to

28 U.S.C. §1826 (a) (1).

-18-

Basically, the proceeding invisioned

by statute is an order to show cause why

an individual should not be held in con-

tempt for violating a court order. It

is the Petitioner's position that he was

denied an opportunity to present "just

cause" when the Court:

1. Failed to notify the Appellant

that the September 24, 1982

hearing was an Order to show

cause hearing pursuant to

28 U.S.C. §1826;

2. Failed to give reasonable

notice, forty (40) hours,

in light of:

A. The issues before the

court;

B. The Witness' request for

two (2) evidenciary hearings;

C. The Witness' request for

Brady Material;

D. The Witness' request to

Subpoena out of state

witnesses.

3. Provided only twenty (20) min-

utes to Appellant to argue

and litigate all pending

matters including six (6)

substantive motions, one (1)

discovery motion and one (1)

petition for restraining order

was insufficient and denied

Appellant a fair opportunity

to argue, litigate and present

his case;

4. Did not give the Witness an

opportunity to present

-19-

mitigating circumstances in

regards to the contempt of

court sentence.

The District Court did not permit

the Witness a meaningful opportunity to

present his defenses and to subpoena out

of state witnesses. The District and

Circuit Courts departed from the

accepted and usual course of judicial

due process and this Court should not

sanction such departure of due process

and statute. It is important for this

Court to determine and clarify statutory

and constitutional law as it is applied

to a contempt of court proceeding.

QUESTION 4

THE COURT BELOW IN PERMITTED THE

USE OF RULE 11 (e) (6) STATEMENTS

HAS SANCTIONED CONDUCT EXPRESSLY

PROHIBITED BY STATUTE AND HAS

DEPARTED FROM AN ACCEPTABLE

STATUTORY INTERPRETATION

In order to facilitate plea and

settlement negotiations, this Court and

Congress has recognized one (1) side

or the other must make certain conses-

sions, admissions or allegations, not

Ordinarily made in the course of

judicial proceedings. Rule ll (e) (6),

Federal Rules of Criminal Procedure.

The rule codifies a long standing

evidenciary rule concerning settlement

=20<-

negotiations. It now exists as statutory

exception or exlusionary rule for extra-

ordinary conversations and negotiations.

The rule itself specifies under

what conditions statements made in

connection with the negotiations can be

used. One (1) of the exceptions is

where the plea negotiations are success-

ful and a plea results from the nego-

tiations.

In this case, the negotiations

were unsuccessful. However, the court

below permitted a plea independant of

the negotiations to satisfy the plea

requirement of the rule. This inter-

pretation seriously attenuates the

purpose and function of the statute

and rule. This Court cannot sanction

such conduct. What is before the

Court is an important federal issue

regarding the application of Rule ll

(e) (6). To permit the interpretation

given by the lower court, would

defeat the purpose of this statute

and the intent of the parties.

afte

QUESTION 5

THE COURT BELOW DECIDED AN IMPORTANT

QUESTIONS OF FEDERAL LAW CONCERNING

THE "SHOWING" REQUIREMENT OF 18 U.S.C.

§3504 (a) (1) WHICH HAS NOT, BUT

SHOULD BE SETTLE BY THIS COURT

The question before the Court is

what constitutes a sufficient showing

in order to comply with the statutory

requirements of 18 U.S.C §3504 (a) (1).

That statute requires a showing each

time there is an allegation that

illegal electronic surveillance is being

used before a Grand Jury. In this case

before the Court, a hearsay statement by

a nonparticipating prosecutor was held

to be sufficient to comply with the

statutory "showing" requirement.

The Petitioner has alleged unlawful

surveillance. The government has admitted

judicially unauthorized or unapproved

surveillance. This Court has held in

United States v. Gelband, surpa, that the

government may not use illegally seized wire-

tap evidence to interrogate an aggrieved

Witness before a Federal Grand Jury.

Furthermore, the court held that a refusal

to testify by a recalcitrant Witness

based upon the claim of unlawful surveil-

lance could constitute just cause

within the meaning of 28 U.S.C. §1826

(a) for not testifying.

-22=

The issue has crystalized in this

case. The government admits judicially

unauthorized surveillance but claims

the statutory exception of consent. It

is the Petitioner's position that this

claim is insufficient to satisfy 18

U.S.C. §3504 (a)(1). Several Circuits

have permitted the sworn affidavits of an

attorney denying the existence of

electronic surveillance. United States

v. Fitch, 472 F. 2d. 458 (9th Cir., 1973);

In Re Mintzer, 511 F. 2d. 471 (lst

Cir., 1974); In Re Grand Jury Proceedings,

463 F. 2d. 226 (5th Cir., 1974). Some

Circuits have also accepted oral state-

ments by the government alleging prior

adjudication on the merits of electronic

surveillance. United States v. Stevens,

510 F. 2d. 1101 (5th Cir., 1975). Other

Circuit Courts have held that blanket

denials without first hand inquiry are

insufficient to comply with 18 U.S.C.

§3504 (a) (1). In Re Quinn, 525 F, 2d,

222 (lst Cir., 1975); United States v.

Alter, 482 F. 2d. 1016 (9th Cir., 1973).

See also, In Re Vigil, supra. It is

necessary for this court to determine

what showing or hearing is required

once a Claim of illegal electronic

surveillance is made prior to an order

wite

to show cause hearing.

VII

CONCLUSION

For the reasons cited above, a Writ

of Certiorari should issue to review the

judgment and opinion of the Tenth

Circuit.

SUBMITTED this 3rd day of

February, 1983

N D, UFMAN

177 N. Church Ave.

1002 Transamerica Bldg.

Tucson, AZ 85701

Attorney for Petitioner

=24<

CERTIFICATE OF SERVICE

I hereby certify that on this 3rd

day of February, 1983, three (3) copies

of the Petition for Writ of Certiorari

were mailed, postage prepaid, to the

United States Attonrey's Office through

its agent, GERALD RAFFERTY, Federal

Office Building, Suite 1200, Drawer 3615,

Denver, Colorado. Counsel for Respondent.

I further certify that all parties

required to be served have been served.

OH . MAN

177 N. Church Ave

1002 Transamerica Bldg.

Tucson, Arizona 85701

Counsel for Petitioner

12-16-82

APPENDIX 1

Hnited States Court of Appeals

For the Tenth Circuit

SLIP OPINION

82-2422

vata ate te eat

PUBLISH

DEC 16 1992

| 4

UNITED STATES COURT OF APPEALS HOWARD K, PHILLIPS

TENTH CIRCUIT

In Re Grand Jury Proceeding

82-2

EDWARD ROBERT NIGRO, JR.,

(Real Party in Interest,)

Appellant,

v. No. 82-2422

UNITED STATES OF AMERICA,

Appellee.

ee ee eee ee ee ee ee ee

Appeal from the United States District Court

For the District of Colorado

(D.C. No. 62-¥-101)

John D. Kaufmann, Tucson, Arizona, for Appellant.

Gerald J. Rafferty, Assistant United States Attorney, Denver,

Colorado, (Robert N. Miller, United States Attorney, Denver,

Colorado, with him on the brief) for Appellee.

Before DOYLE, MCKAY and LOGAN, Circuit Judges.

DOYLE, Circuit Judge.

Appellant Edward Nigro seeks to reverse entry of a

contempt citation by the District Court of the District of

Colorado and seeks also remand with instructions that he be

free to invoke his fifth amendment privilege against

self-incrimination before the grand jury and to have it

applicable to a matter which would incriminate him in foreign

countries. Nigro assigns a number of grounds in support of his

demand for relief. All were considered by the trial court

except one, which is whether there should have been a hearing

regarding facts which would mitigate the contempt sanctions.

The grand jury which was investigating alleged violations of

federal narcotics, customs and other laws, subpoenaed Nigro to

appear before it and give testimony on July 27 and 28, 1982.

He did appear before the Grand Jury on the basis of issuance of

a writ of habeas corpus. He refused, however, to testify.

Instead he invoked his privilege against self-incrimination.

Thereupon following a motion by the United States Attorney the

trial court entered an order granting immunity pursuant to 18

U.S.C. §§ 6002 and 6003. The court order dated July 28, 1982,

is in part as follows:

1. That the witness Edward Robert Nigro give

testimony or provide other information which he

cefuses to give or to provide on the basis of his

privilege against self-incrimination as to all

matters about which he may be interrogated before

said grand jury;

2. That no testimony or other information compelled

under this order (or any information directly or

indirectly derived from such testimony or other

information) may be used against said witness in any

criminal case, in any court, except a prosecution for

perjury, giving a false statement or otherwise

ailing to comply with this order.

The questions which Mr. Nigro refused to answer had to do

with illegal import and export of money between the United

States and foreign countries; illegal laundering of narcotics

money inside and outside the territory of the United States;

illegal laundering of narcotics money through offshore

corporations or banks; and sources of soney received from

operation of narcotics operation. Nigro was called back before

the grand jury and given another opportunity to answer

questions, but he refused again to answer anything and

thereupon the government moved that the trial court punish

Nigro for his refusal to comply with the court order compelling

his testimony pursuant to 28 U.S.C. § 1826(a).

thereupon Nigro sought to have the grand jury subpoena

quashed on the basis that the court's ismunity order would not

extend to foreign prosecutions and, secondly, that it would not

afford him protection co-extensive with his privilege against

self-incrimination. He also alleged procedural irregularities

and directed other attacks against his .icarceration.

On September 24, 1962 a hearing was held. A carefully

written opinion was issued on November 17, 1982 by the trial

court. It rejected all of the grounds Mr. Nigro asserted in

his effort to justify his refusal to testify notwithstanding

his grant of immunity.

The trial court gave no acceptance to the foreign

prosecution point. The judge said: “Neither at the hearings

nor in the briefs has Mr. Nigro established that his fears of

foreign prosecution are real, substantial and reasonable and

based on objective facts as distinguished from his subjective

speculation.” The court further found that Mr. Nigro showed

insufficient connection between the areas of the grand jury's

inquiry and potential foreign prosecution for his testimony.

Thus there was no evidence that if charges were filed in a

foreign country, Nigro would be subject to extradition from the

United States; there was insufficient evidence to believe that

Nigro's testimony would be disclosed to a foreign government;

and there was no showing of a risk that the evidence might

incriminate Nigro in a foreign jurisdiction.

Also found by the trial court was that Nigro's claias

were generally without merit. His motions for discovery were

premature and contrary to Rule 6(c), F.R. Cr.P. He was an

immunized witness before the grand jury and was not a target in

the proceedings. His contention that he could not comply with

the order to testify because the government's questions were

tainced by illegal electronic surveillance were rejected

because the trial court found that only valid consensual

surveillance occurred and that the government would give the

transcripts of those conversations to Mr. Nigro.

The further contention of Nigro was that some of the

questions he was asked before the grand jury included

information derived from plea discussions held in Tucson,

Arizona about possible charges in Colorado conducted pursuant

to Rule ll(e) (6), F.R.Ce.P. These discussions did not result

in any agreement and Nigro entered a guilty plea to the Arizona

charges in the United States District Court for Arizona. The

trial court ruled that since such a plea was entered Mr.

Nigro's statements were available to the government under Rule

ll(e) (6) (D), F.R.Ce.P. Therefore, Mr. Nigro could not be

excused from testifying before the grand jury on such a basis.

Also rejected by the trial court was Nigro's assertion

that the grand jury proceedings had been tainted; this as a

result of an Assistant United States Attorney, a court reporter

and Nigro himself being present during the deliberations and

voting of the grand jury. The “deliberations” were only a

momentary consideration which occurred after the United States

Attorney asked members of the grand jury whether they approved

of his taking Mr. Nigro before the United States District Court

to seek immunity and an order compelling him to testify. The

trial court viewed the taint as insignificant and only a

technical violation of Rule 6(d) F.R.Cr.P. Inasmuch as Nigro

was an immunized witness he was not prejudiced in any event.

The trial court concluded that there was nothing in the

record that prec’.uded Nigro from testifying before the grand

jury and the trial court found him in civil contempt for his

refusal to obey its lawful order. He is subject to being

confined until he agrees to testify before the grand jury or

until the particular grand jury is terminated. The time spent

in jail by Nigro as a result of this contempt sentence is not

to be credited to the sentences he is already serving.

Defendant has tendered numerous contentions. We do not

deem it necessary to consider each and every one. These can be

reduced to the following:

That the District Court erred in that it violated 28

U.S.C. 1826 by not issuing an order to show cause, by

failing to give adequate notice.

II.

That the trial court erred in determining that the

fifth amendment (of the Constitution) is inapplicable

to foreign prosecution and that the appellant does

not face a real and substantial fear of the foreign

prosecution.

That the fifth amendment applies to the threat of

prosecution.

That the immunity granted was not co-extensive with

the fifth amendment privilege against

self-incrimination.

There is only one essential problem and we address

ourselves to that. We consider in detail only one of

appellant's contentions.

Mr. Nigro's fifth amendment arguments lose their

importance if the emphasis is placed where it belongs, that is

on the sufficiency of Rule 6(e), F.R.Cr.P. That rule's

guarantees of secrecy for Mr. Nigro's compelled disclosures are

such that he has no reason to fear foreign prosecutions based

on his grand jury testimony. The trial court followed the

majority of circuits when it concluded that “in view of the

power and duty of this court to preserve the secrecy of grand

jury matters, no ‘real and substantial’ danger of foreign

prosecution exists based on his ordered testimony." This court

can confidently affirm that rule.

The Supreme Court in Zicarelli v. New Jersey

Investigation Comm'n, 406 U.S. 472, 478 set forth the standard

that a witness must satisfy to invoke the privilege against

self-incrimination. Applied to Mr. Nigro Zicarelli means he

must show that his fears of foreign prosecution are real, and

based upon objective facts; the fifth amendment privilege

“protects against real dangers, not remote and speculative

possibilities." Id. The majority of the circuits which have

considered whether an immunized witness is compelled to testify

before a grand jury was adequately protected from leaks of his

testimony to foreign authorities seeking to prosecute his, have

held that grand jury proceedings are sufficiently secret to

eliminate any reasonable concerns the witness may have as to

foreign prosecutions. In re Baird, 668 P.2d 432, 434 (8th

Cir.), cert. denied, 102 S.Ct. 2255 (1982); United States v.

Brummitt, 665 F.2d $21, 525-26 (Sth Cir. 1981), cert. denied,

102 S.Ct. 2244 (1982); In re Campbell, 628 F.2d 1260, 1262 (9th

Cir. 19860); In ce Federal Grand Jury Witness (Lemieux), 597

F.2d 1166, 1167-68 (9th Cir. 1979); In re Grand Jury

Proceedings (Postal), 559 F.2d 234, 236-37, (Sth Cir. 1977),

cert. denied, 434 U.S. 1062 (1978); In re Weir, 495 F.2d 879,

881 (9th Cir.), cert. denied, 419 U.S. 1036 (1974); United

States v. Armstrong, 476 F.2d 313, 316 (Sth Cir. 1973); In ce

Tierney, 465 F.2d 806, 812 (Sth Circ. 1972), cert. denied, 410

U.S. 914 (1973).

This court has already affirmed the adequacy of Rule

6(e), FP.R.Ce.P. as a safeguard for the secrecy of immunized

testimony before a grand jury where there war a threat of

foreign prosecution alleged. In re Parker, 411 F.2d 1067, 1070

(10th Cir. 1969), vacated as moot sub nom. Parker v. United

States, 397 U.S. 96 (1970). Our viewpoint on this has not

changed.

The few courts which have expressed reservations about

the secrecy of grand jury proceedings have pointed out a number

of factors which suggest that such proceedings cannot be

leakproof. The Second Circuit's recent decision, In Re

Flanagan, No. 82-6058 (2nd Cir., Oct. 13, 1982), for instance

makes the following points:

1. Grand jurors or government agents might

inadvertently leak testimony to reporters.

2. Other defendants can require disclosure of grand

jury minutes containing exclupatory material under

Brady v. Maryland, 373 0.S. 83 (1963).

3. Defendants can also require trial witnesses to

disclose their grand jury testimony regarding matters

testified to on direct examination. 18 0.S.C.

§ 3500(e) (3).

4. Courts permit disclosure of grand jury minutes

when they are relevant to a motion to dismiss an

indictment, or raising a double jeopardy claim or

challenging a search warrant, or concerning

post-conviction proceedings.

5. Grand jury records can also be released for use

in private litigation.

See Flanagan, supra, slip op. at 59-60, and the authorities

cited therein. See also In re Federal Grand Jury Witness

(Lemieux), 597 F.2d 1166, 1168-69 (9th Cir. 1979) (Hufstedler,

J., concurring); In re Cardassi, 351 F.Supp. 1080 (D.C. Conn.

1972) The suggestions do not rise above remote possibilities.

This court is not uraware of the hesitancy of a witness

in Nigro's position even though Nigro is solely responsible for

the difficulty of his position. He has violated the laws of

several countries and must testify about those illegal

activities before a grand jury if the trial court's order is

afficmed. He must weigh the certainty of a contempt citation

here against the likelihood of someday being prosecuted abroad

should he be extradited or otherwise come within the

jurisdiction of foreign laws he has broken. He has been,

however, given immunity so he is not too bad off.

To protect him from the possibility of facing foreign

prosecutions based on incriminating disclosures before the

grand jury this court should affirm the trial court's contempt

Citation, but return the case to that court with the following

recommendations which will promote and support secrecy by

adherence to Rule 6(e) in Mr. Nigro's case:

“4, the district court should require ail

pecticipants in the grand jury proceedings to take an

@ath of secrecy regarding Mr. Nigro's testimony.

2. The transcript of his immunized testimony should

be sealed.

3. Puturce requests for disclosure should be reviewed

in camera by the district court which should

zealously protect the immunity it conferred upon Mr.

Nigro.

These measures are endored by the United States as

appellee, see Appellee's Brief at 12-13, and this type of

protection has found approval in other decisions; In re Federal

Grand Jury Witness (Lemieux), 597 F.2d 1166, 1167-68 (9th Cir.

1979); In ce Tierney, 465 F.2d 806, 612 (Sth Cir. 1972), cert.

denied, 410 U.S. 914 (1973).

The affirmation of Parker above means it is unnecessary

to consider whether Mr. Nigro showed a sufficient risk of

foreign prosecution to entitle him to remain silent. The

conclusion that Rule 6(e), F.R.Cr.P., a8 bolstered by the

recommendations above, will adequately protect the secrecy of

Mr. Nigro's disclosures makes irrelevant an inquiry into the

likelihood ef the risks of foreign prosecutions he may face.

2. Grand Jury Proceedings and Civil Contempt Procedures

Due to the constraints of 28 U.S.C. § 1826(b) which

purports to require this court to decide this appeal within 30

days of its filing, it is impossible to address in this opinion

each issue Mr. Nigro raises as fully as this court might do in

less hurried circumstances,

The court has considered the positions presented in the

briefs and oral arguments. We find no error in the trial

court's conclusions of law expressed in its Memorandum Opinion

and summarized above. It follows that the judgment of the

district court including the contempt citation against Mr.

Nigro should be affirmed. It is so ordered. We do not

consider the other contention based upen the fifth amendment.

Our.culing renders this unnecessary.

] APPENDIX 2 ie b bawd

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO nee ee

Misc. No: 82-Y-101 eee EF. CLERK

IN RE GRAND JURY PROCEEDING )

82-2 ; MEMORANDUM OPINION AND

)

(KELATING TO EDWARD RUBERT —

NIGRO, JR., Petitioner)

CUIEF JUDGE SHEKMAN G, FINESILVER:

This matter is before the Court on two principal matters:

(1) Petitioner's Motion to Quash Writ of Habeas Corpus Ad

Prosequendum filed by Edward Robert Nigro, Jr., Petitioner; and

(2) the Government's Petition Pursuant to 28 U.S.C. §1826(a)

fur a Rule to Show Cause why Mr. Nigre should not be held in

contempt of court for failure to give testimony before a

federal grand jury. Mr. Nigro was subpoenaed to appear before

a federal grand jury ir Colorado which was investigating alieged

violations of federal narcotics, custons and other rave. On

July 27 and 28, 1962, Mr. Nigro appeared before Grand Jury 82-2

pursuant to a Writ of Habeas Corpus. Mr. Nigro refused to

testify invoking his privilege against self-incrimination.

Thereafter, upon appropriate motion by the United States

Attorney and supporting documents an order grant‘ug immunity

was entered pursuant to 18 U.S.C. §§ 6002 and £003. The court

order dated July 28, 1982, reads in part as follows:

NOW, THEREFORE, IT IS ORDERED pursuant

to 18 U.S.C. $6002:

1. That the witness Edward Robert Nigro

give testimony or provide other infor-

mation which he refuses to give or to

provide on the basis of his privilege

against self-incrimination as to all

matters about which he may be interrogated

before said grand jury;

2. That no testimony or other information

compelled under tiis order (or any infor

tma.ion directly or indirectly derived from

V7 Titie 21 U.S.C. F§R41(a) (1), 846 and 848; Title 18 U.S.C.

§2; and Title 26 U.S.C. §§7203 and 7206(1).

Mr. Nigro refused to answer questions concerning illegal

import and export of money between the United States and

unnomed ccuntries; fitegal laundering of narcotics money

inside and outetde the territorial United States; tlle,al

Jauncering of narcotics money through off-shore corporations

or banks; sources of noney received from operation of

narceticr operation.

such testimony or other information)

may be used against said witness in

any criminal case, in any court, except

@ prosecution for perjury, giving a

false statement or otherwise failing

to comply with this order.

Mr. Nigro returned to the grand jury on the same date

the immunity order was entered and refused to answer any

questions. The Government moved the court for entry of

sanctions against Mr. Nigro for his refusal to comply with the

court order ordering his testimony [28 U.S.C. § 1826(a)).

Thereafter, Mr. Nigro through his counsel, moved to quash

the grand jury subpoena alleging (a) that the court's ismdnity

order would not safeguard him from foreign prosecution and (b)

it would not afford him protection co-extensive with his

privilege against self-incrimination.

Mr. Nigro also asserted other grounds for not testifying,

alleging procedural irregularities and other attacks directed

against his incarceration. Motions that had been filed on

his behalf include violations of Rule 6, F.R.Cr.P., abuse of

process and others.

A hearing on the Motion was held on September 24, 1982,

at which time Mr. Nigro set forth his reasons for denial of

testimony.

The main issue involved is whether a witness who has been

granted immunity against the use of his testimony in federal

and state prosecutions may present possible foreign prosecution

as a basis for his claim of self-incrimination before a grand

jury.

In the context of the factual backdrop of this case, we

answer in the negative.

Neither at tue hearings nor in the briefs has Mr. Nigro

cstablished that his fears of foreign prosecution are real,

substantial and reasonable and based on objective facts as

distinguished from his subjcctive speculation. Fifth awend-

ment “privilege protects against real dangers, not remote

aad cpeculative possibilities". Zicarelli v. New Jersey

State Commission of Investigation, 406 US.472, 478 (1972).

The individual seeking to invoke the fifth amendment privilege

against self-incrimination bears the heavy burden of establish-

ing (1) that the subject of the Government's questions raises

“real danger", that the individual may be compelled to disclose

information that might incriminate him under foreign law and

(2) that he legitimately entertains a “real and substantial”

fear that his prosecution by a foreign government is likely

to follow. United States v. Wanagita, 552 F.2d 940, 946 (2d

Cir. 1977).

Provisions of the constitution and fifth amendment apply

only to restrain officials who act under the laws of the United

States; they do not extend their protection to persons who are

Not subject to prosecution by wholly unrelated governments abroad.

ont In Ke Parker, 411 F.2d 1067 (10th Cir. 1969) vacated as moot

sub nom. Parker v. United Scates, 397 U.S. 96 (1970). In In Re

rker the trial court held a witness in civil contempt for

{ve

refusing to answer grand jury questions. In a thorough and

well reasoncd opinion, the appellate court affirmed. The

case remains strong precedent in this circuit.

In Re Parker, supra, holds (a) that the secrecy attending

Wh)

Val Pe jury proceedings serves as a sufficient protection for

L an immunized witness that there is no real risk of foreign K

eo prosecution and (b) the witness cannot invoke her privilege

against self-incrimination after receiving court immunization.

d| ® Id, at 1069. In accord, Zicarelli v. New Jersey State

‘

tg Commission of Investigation, 406 US. 472 (1972).

L In In Re Parker the trial and appellate courts were directed

to the body of law of a specific country (Canada) to determine

whether there was a danger of incrimination under the law

of that foreign country. In the instant case, Mr. Nigro in

his broad claim of protection merely asserts that he may be

subject to charges by some unnamed foreign jurisdiction.

Clearly, his claim of privilege against prosecution is

speculative und lacks any specificity. In the stronger case

of In Re Packer the claim of the immunized witness was dis-

allowed,

o3<

We have considered and reject Mr. Nigro's argument that

public disclosure of his grand jury testimony is inevitable

and that when such disclosure occurs, various foreign juris-

dictions will descend upon him. However, upon inquiry by

the Court at the time of oral argument, counsel for Mr. Nigro

was unable to cite a single case or present any legal precedent

where foreign prosecutors sought extradition and prosecution

of a grand jury witness on the basis of his immunized testimony.

Mr. Nigro is adequately protected by the provisions of

qua:

Rule 6(e), F.R.Cr.P. requiring that grand jury testimony be

ke afeguard eliminates any reasonable ground

for apprehending foreign prosecution. In Re Parker, supra;

In Re Baird, 668 F.2d 432, 434 (8th Cir. 1982), cert. denied,

102 S.Ct. 2255 (1982); United States v. Brummitt, 665 F.2d

521, (Sth Cir. 1981), cert. denied, 102 S.Ct. 2244 (1982);

In Re Campbell, 628 F.2d 1260 (9th Cir. 1980); In Re Tierney,

465 F.2d 806 (Sth Cir. 1972), cert. denied, 410 US 914 (1973).

See discussion in In Re Flanagan, F.2d ss (2d Cir. 1982)

Slip Opinion, October 13, 1982.

Another important factor is that the grant of immunity is

as broad as possible under 18 U.S.C. $§ 6002 and 6003; it is

co-extensive with the self-incrimination privilege under the

constitution and applicable law. Petitioner can expect no

more. Under Rule 6(e) (2)? Government attorneys are not authorized

to disclose grand jury testimony to foreign authorities without

prior Court authorization. Although Rule 6(e)(3)(a) permits

disclosure to an attorney for the Government "for use in the

performance of such attorney's duty and to government personnel

deemed necessary to assist an attorney for the government in

enforcing federal criminal law" that exception does not allow

federal law enforcement personne) to turn over grand jury

materials to foreign officials without first obtaining a court

order under Rule 6(e)(3)(c)(i). See, In Re Baird, supra, at

434 and United States v. Brummitt, supra, at 524.

2/ See Appendix for excerpt of Rule 6, F.R.Cr.P.

ele

Mr. Nigro's aryument ignores the fact that a court which

has granted immunity to a grand jury witness who demonstrates

a “real danger" that his compelled testimony could provide a

basis for foreign prosecution would be unlikely to permit dis-

closure of grand jury testimony to foreign authorities.

As one court has observed:

To infer that this court would on the

one hand give defendant immunity, and

on the other hand renege on its own

integrity is so difficult to assume

it is speculative. Only the court can

give imuevaity; only the court can order

the witness to answer; only the court

can order disclosure.

See, United States v. Brummitt, supra, 525.4; See also, In Re

Tierney, supra; 'n Re Campbell, supra; and In Re Parker, supra.

If disclosure is requested by foreign authorities, or if

disclosure is sought on other grounds at a later stage in the

proceedings, appropriate steps can be taken to minimize any

risk that immunized testimony would be disclosed in violation

of a witness's constitutional rights. See Kastigar v. United

States, 406 US. 441, reh. dented, 408 US.931 (1972)

Clearly in view of the power and duty of this Court to

preserve the secrecy of grand jury matters, no “real and sub-

stantial” danger of foreign prosecution exists based on his

ordered testimony. Zicarrelli v. New Jersey State Commission

of Investigation, supra; In Re Parker, supra; and see special

concurring opinion In Re Flanagan, supra, Slip Opinion October

13, 1982, page 62, 63.

In Re Flanagan, ___eF.«2d_ ts (2d Cir. 1982) (Slip Opinion

October 13, 1982) is the latest authority to uphold the require-

ment of testimony under grant of immunity notwithstanding a

claim of potential foreign prosecution.

Flanagan was subpoenaed to testify before a grand jury

investigating a conspiracy to smuggle fire arms and ammunition

from the United States to the Irish Republic Army in Ireland,

in violation of 26 U.S.C. § 5861 and 22 U.S.C. $§ 2778(b) (2)

and (c). He asserted his fifth amendment privilege to refuse

to testify on the grounds of seli-incrimination. An order was

entered pursuant to 18 U.S.C. §§ 6002 and 6003, compelling hia

«$e

to “give testimony or provide other intormation...as to all

matters about which he may be interrogated before the grand

jury". Notwithstanding the immunity grant, Mr. Flenagan

persisted in invoking the fifth amendment and refused to

answer questions before the grand jury claiming that because

the immunity order did not purport to protect him from prosecution

in Ireland or the United Kingdom, it could not supplant his

constitutional privilege against self-incrimination.

The circuit court reviewed current authorities and reversed

the triad court's refusal to hold Mr. Flanagan in civil contempt

for his refusal to testify before a grand jury under a grant

of immunity. The appeal's court held that interrogation before

the grand jury would not violate his right of protection against

self-incriminations since Flanagan failed to demonstrate any

real or substantial fear of foreign prosecution as a result

of his giving grand jury testimony. The appellate court did

not decide the question whether, when immunity is granted a

grand jury witness, the fifth amendment protects him against

disclosure of information that would expose him to a substantial

risk of foreign prosecution. Judge Van Graafeiland, in a special

concurring opinion, held in effect that the spirit and tenor

of Rule 6 (3) of the F.R.Cr.P. would afford the petitioner

sufficient protection and that the “likelihood is that the

tradition of grand jury secrecy, which is older than the Nation

itself... will not be cavalierly disregarded."

There is another point urged in petitioner's argument.

He contends that the existence of foreign narcotics laws and

membership by many countries in a compact outlawing violations

of said laws, legitiwatizes his “real fear of prosscution".

In support, he cites the 1961 Multilateral Single Convention

on Narcotics Law; 18 U.S.C. § 1407. This statute must be read

together with 26 U.S.C. § 1739 (Amending Protocoi). In our

view this argument does not support petitioner's position.

A reading of the applicable statutes lead to the con-

clusion that the Single Convention and Amending Protocol

require the member countries to the convention to be bound to

=6-

observe the constitutional, legal and administrative systems

of member nations. According to our analysis, this would in-

clude grants of immunity.

In sum we find that there is no existence of potential

foreign prosecution of Mr. Nigro; no nexus has been established

between areas of inquiry of the grand jury and potential foreign

prosecution for this testimony; there is no evidence that if

charges were filed in a foreign country, Mr. Nigro would be

subject to extradition from the United States; the likelihood

that Mr. Nigro's testimony would be disclosed to a foreign

government has not been established; and further the risk is

not sufficiently substantial to justify a real fear that the

evidence might incriminate Mr. Nigro in a foreign jurisdiction.

Mr. Nigro's refusal to testify on the grounds stated under

the several motions is without support in fact or law.

The Court finds in favor of the Government and against

the claim of the Petitioner.”

Il.

The procedural arguvents advanced by Mr. Nigro with regard

to alleged abuses by the government simply do not provide a

basis for non-compliance with the order to present testimony.

No abuse has been demonstrated at this point. The request for

discovery by Mr. Nigro ignores the fact that he is not a target

in the grand jury proceedings. He is an immunized witness

before the grand jury. If he should be indicted as a result

of these proceedings, protections outlined in Kastigar v.

United States, 406 U.S. 411 (1972), would be applicable. How-

ever, at this stage of the proceedings, these motions are at

best premature and contrary to Rule 6(e) F.R.Cr.P.

Mr. Nigro also contends that he could not comply with the

order to testify because the government's questions are tainted

by illegal electronic surveillance. The allegation is without

any substantiation. On September 24, 1982, at the hearing on

3/ We note that the point involved in this case has been a

subject of several law reviews and legal publications as

noted in the Appendix.

-7<-

this matter, the government announced that it had conducted a

search of its files and could find no illegal electronic

surveillance of the witness. However, valid consensual sur-

—

veillance did occur. The government has agreed $0 provide

che transcripts of those conversations, In light of these

facts, alleged electronic surveillance does not afford a

basis to avoid our order of July 27, 1982.

While the government has responded, we do note Mr. Nigro

has not made even a preliminary showing necessary to request

the government to respond to his claim of illegal electronic

surveillance. The claim and cursory information submitted

by Mr. Nigro is such unsubstantial evidence that it places no

burden on the government to “affirm or deny" the existence

of wiretapping. See In Re Grand Jury (Vigil) 524 F.2d 209,

214 (10th Cir. 1975), cert. denied 425 U.S. 927 (1976).

However, assuming that the showing by Mr. Nigro was

adequate to trigger’a government response, the answer and

“Genial by the government on this point was sufficient. The

—_

witness cannot avoid testinony on the grounds advanced. See

Gelbard v. United States, 408 US. 41, 71 (1972) (White, J.

eirskea ant United States v. Yanagita, 552 F.2d 940 (2¢

Cir. 1977).

Ill.

Mr. Nigro also contends that some of the questions pro-

pounded to him before the grand jury include information

derived from plea discussions held in Tucson, Arizona, among

his attorney, two government prosecutors, and government agents

from Colorado. It appears that during Mr. Nigro's plea dis-

cussions concerning the Arizona charges, he and his attorney

attempted to resolve his status with regard to the investigation

now pending before Grand Jury 82-2 by adie some mech ta Colona

to the Colorado agents in return for a commitment nbdt to

prosecute him. All parties now agrce these discussions vere

conducted pursuant to Rule 11 (e)(6) F.R.Cr.P. After these

di o result _ in an tr. Nigro pro-

ceeded to enter a guilty plea in che United States District

Court for Arizona.

OLe,

Rule 11 (e)(6)(U) ¥.R.Cr.P. is informative. Under that

Rule, Mr. Migro'’s statements to the prosecutors and agents

in Arizona would be admissible in any civil or criminal

proceeding once a plea of guilty was accepted and not with-

drawn. Rule 11 (e)(6) F.R.Cr.P.; See also, 1C. Wright,

Federal Practice and Procedure § 11.8(4) (1969). Since such

a plea was entered, these statements are available to the

government. Accord, United States v. Benson, 640 F.2d 136

8th Cir. 1981). Therefore, this argument does not afford

Mr. Nigro an excuse not to present testimony before the grand

jury.

Iv.

Mr. Nigro also asserts that Grand Jury 82-2 has been

tainted and should be excluded from hearing any other matters

concerning him. He alleges that Rule 6(d) F.R.Cr.P. was

violated, as Gerald J. Rafferty, Esq., an Assistant United

States Attorney, a court reporter and Mr. Nigro himself

were present during grand jury deliberations and voting.

The incident occurred after Mr. Rafferty asked members of

the grand jury whether they approved of his taking Mr. Nigro

before the United States District Court to seek immunity and

an order compelling him to testify. In our view such conduct

amounted to only a technical violation of Rule 6(d). In any

event any taint is insignificant and does not justify Mr.

Nigro's refusal to testify before Grand Jury 82-2. Mr. Nigro's

rights have not been prejudiced by the incident. Mr. Nigro

at this point in time is in the position of an immunized

witness.

Finelly, Mr. Nigro has failed to support his Motion to

Quash the Writ of Habeas Corpus for failure of the Department

of Justice to follow its guidelines forbidding a target

defendant to be called as a witness before a grand jury and

his Motion to Quash the Writ for abuse of process. Contrary

o9e

to his position, the government has not used the grand jury to

punish or abuse Mr. Nigro. All Motions filed by Mr. Nigro

are DENIED.

vi.

The above constitute the findings of facts and conclusions

of law.

vil.

In light of the above discussions, the Court finds as

follows:

1. Grand Jury 82-2 for the District of Colorado is

conducting an investigation involving possible violations

of narcotics, currency and customs laws including Title 21

U.S.C. §$841(a)(1), 846 and 848; Title 18 U.S.C. §2; and

Title 26 U.S.C. §$7203 and 7206(1).

2. On July 27, 1982, this Court directed Edward Robert

Nigro, Jr. to provide testimony to the grand jury, pursuant

to 18 U...C. §§6002 and 6003(a).

3. On July 28, 1982, Edward Robert Nigro,Jr. appeared

before Grand Jury 62-2 and refused to provide said testimony

on the basis of various grounds discussed above.

4. After careful review of the briefs and the applicable

law we find Edward Robert Nigro, Jr. has no constitutional

privilege or other justification for refusing to provide

testimony to Grand Jury 82-2.

ORDER

Edward Robert Nigro's Motions to Quash the Writ of Habeas

Corpus and all Motions are hereby DENIED.

The Petition of the Government pursuant to 28 U.S.C.

$1826(a) for a Rule to Show Cause is GRANTED.

It is adjudged that Edward Robert Nigro, Jr. ia in civil

contewpt of this Court for his refusal to obey the lawful

order of this court and give testimony or provide other

information to the grand jury.

IT 18 THEREFORE ORDERED that Edward Robert Nigro, Jr. be

and is hereby committed to confinement until such time as

Fdward Kobert Nigro, Je. is willing to give such testimony

-10-

or provide such information to the grand jury.

DATED this _/ ¢ day of November 1982, in Denver, Colorado.

BY THE COURT:

Ad Sats a ttt Ali.

SHERMAN G. FINESILVER, Chief Judge

United States District Court

ENTERED

ON THE DOCKET

NOV 4 2 1982

saat Ranta

—

eile

APPEARANCES OF COUNSEL:

John P. Oppenheim, Esq., and John D. Kaufman, Esq.

appearing on behalf of the witness;

Robert N. Miller, Esq., United States Attorney, and

Gerald J. Rafferty, Esq., Assistant United States Attorney

appearing on behalf of the Government

-12-

APPENDIX

RULE 6. The Grand Jury

(e) Recording and Disclosure of Proceedings.

(2) General Rule of Secrecy.--A grand juror, an interpreter,

a stenographer, an operator of a recording device, a typist who

transcribes recorded testimony, an attorney for the government,

or any person to whom disclosure is made under paragraph (3) (A) (14)

of this subdivision shall not disclose matters occurring before

the grand jury, except as otherwise provided for in these rules.

No obligation of secrecy may be imposed on any person except in

accordance with this rule. A knowing violation of Rule 6 may be

punished as a contempt of court.

(3) Exceptions.

(A) Disclosure otherwise prohibited by this rule of matters

occurring before the grand jury, other than its deliberations

and the vote of any grand juror, may be made to--

(4) an attorney for the government for use in the performance

of such attorney's duty; and

(44) such government personne] as are deemed necessary by an

attorney for the government to assist an attorney for the govern-

ment in the perfurmance of such attorney's duty to enforce

federal criminal law.

(B) Any person to whom matters are disclssud under subpara-

graph (A) (ii) of this paragraph shall not utilize that grand jury

material for any purpose other than assisting the attorney for the

government in the performance of such attorney's duty to enforce

federal criminal law. An attorney for the government shall

prorptly provide the district court, before which was impaneled the

grand jury whose material has been so disclosed, with the names of

the persons to whom such disclosure has been made.

occurring before the grand jury may also be made--

(1) when so directed by a court preliminarily to or in

connection with a judicial proceeding; or

(id) when permitted by a court at the request of the

defendant, upon a showing that grounds may exist for a motion

to dismiss the indictment because of matters occurring before

the grand jury.

If the court orders disclosure of matters occurring before the

grand jury, the disclosure shall be made in such manner, at such

time, and under such conditions as the court may direct.

Comment, Fear of Prosecution and the Fifth Amendment, 58 Sowa

L.Rev. 1304 (1972). Note, Testimony Incriminating Under the

Laws of a Foreign Country -- Is there a tpn to Remain Silent?,

lil N.Y.U. J. Internat. Law Pol. ; Seco Interim

Report of the National Commission on Reform of Federal Criminal

Laws, Mar. 17, 1969, Working Papers of the Commission; The Fifth

Amendment Does Not Protect Federal Grand Jury Witnesses From

Being Compelled to Give Testimony Which Would Incriminate Them

in a Foreign Jurisdiction, 8 Tex. Int. L. J. 52 (1973); and

Federal Witness immunity Problems & Practice under 18 U.S.C. “5

- , 14 American Criminal Law Review 275, 288 (1976).

APPENDIX 3

Fifth Amendment to the United States

Constitution:

No person shall be held to answer for

capital, or otherwise infamous crime,

- « «f nor shall be compelled in any

criminal case to be a witness

against himself, nor be deprived of

life, liberty or property without

due process of law; . .. .

18 U.S.C. §6002 - Immunity:

Whenever a witness refuses on the

basis of his privilege against self-

incrimination, to testify or provide

other information in a proceeding

before or ancillar to-

1. A court or Grand Jury of the

United States,

2. An agency of the United States,

3. Either house of Congress, a

joint committee of the two

houses or committee or sub-

committee of either house,

and the person presiding over the

proceeding communicates to the

Witness an order issued under this

party, the Witness may not refuse to

comply with the order on the basis of

his privilege against self-incrimina-

tion; but no testimony or other

information compelled under the order

(or any information directly or

indirectly derived from such testimony

or other information) may be used

against the Witness in any criminal

case, except prosecution for perjury

giving a false statement, or other-

wise failing to comply with the order.

28 U.S.C. §1826 - Recalcitrant Witness:

A. Whenever a Witness in aay pro-

ceeding before or ancillary to

any court or Grand Jury of the

United States refused without

just cause shown to comply with

an order of the court to

testify or provide other inform-

ation, including any book, paper,

document or record, recording or

other material, the court, upon

such refusal or when refusal is

duly brought to its attention

may summarily order his con-

finement at a suitable place

until such time as the Witness

is willing to give such testimony

or provide such information. No

period of such confinement shall

exceed the life of-

1. The court proceeding, or

2. The term of the Grand Jury,

including extensions, before

which such refusal to comply

with a court order occurred,

but in no event shall such

confinement exceed eighteen

(18) months.

B. No person confined pursuant to

subsection A of this section shall

be admitted to bail pending the

determination of any appeal taken

by him from the order of his

confinement if it appears that

the appeal is frivolous or taken

for delay. Any appeal from an

order of confinement under this

section shall be disposed of as

soon as practical, but no later

than thirty (30) days after the

filing of said appeal.

18 U.S.C. §3504 (a) (1) - Litigation

concerning sources of evidence:

In any trial, hearing, or other

proceeding in or before any

court, grand jury, department,

officer, agency, regulatory body,

or other authority of the

United States:

1. Upon a claim by a party

agreed that evidence is

admissible because it is

the primary product of

an unlawful act or because

it was obtained by the

exploitation of an unlaw-

ful act, the opponent of

the claim shall affirm or

deny the occurrence of the

alleged unlawful act;

As used in this section "unlawful

act" means any act, the use of

any electronic, mechanical, or

other device (as defined by §2510

(5) of this Title) in viola-

tion of the constitution or

laws of the United States or

any regulation or standard

promulgated pursuant thereto.

Federal Rules of Criminal Procedure,

Rule 6 (e) (2) and (3) = Rule of

Secrecy and Exceptions:

(e)

(2)

The Grand Jury - Disclosure of

Proceeding.

A grand juror, an interpretor,

stenographer, an operator of a

(3)

recording device, a typist who

transcribed recorded testimony,

an attorney for the government,

Or any person to whom disclosure

is made under Paragraph 3 (a)

(ii) of this subdivision shall

not disclose matters occurring

before the grand jury, except as

otherwise provided for in these

rules. No obligation of secrecy

may be imposed on any person

except in accordance with this

rule. A knowing violation of

Rule 6 may be punished as a

contempt of court.

(a) Disclosure otherwise pro-

hibited by this rule of matters

occurring before the grand jury,

other than its deliberation and

vote of a grand jury, may be

made to-

(i) any attorney for the govern-

ment for use in the performance

of such attorney's duties;

(ii) such government personnel

as are deemed necessary by an

attorney for the government to

assist an attorney for the

government in the performance

of such attorney's duties to

enforce federal criminal law.

(b) Any person to whom matters

are disclosed under subparagraph

(a) (ii) of this paragraph shall

not utilize the grand jury

material for any other purpose

other than assisting the attorney

for the government in the per-

formance of such attorney's

duties to enforce federal criminal

law. An attorney for the

shall prompty provide the

District Court, before which

was enpaneled the Grand Jury

whose material had been so

disclosed with the names of

the persons to whom such

disclosure has been made.

(3) (ce) Disclosure otherwise pro-

hibited by this rule of matter

occurring before the Grand Jury

may also be made-

(i) 1. When so directed by a

court preliminary

2. Or in connenction with

a judicial proceeding;

(ii) When permitted by a court

at the request of the Defendant,

upon a showing that grounds may

exist for a motion to dismiss the

indictment becuase of matters

occurring before the Grand Jury.

Federal Rule of Criminal Procedure,

Rule 11 (e) (6) = Inadmissibility of

Pleas, Plea Discussions, and Related

Statements:

Except as otherwise provided in this

paragraph, evidence of the following

is not, in any civil or criminal

proceeding, admissible against the

Defendant who made the plea or was

a participant in the plea discussions.

1. A plea of guilty which was later

withdrawn;

2. A Plea of nolo contendere;

3. Any statements made in the course

of any proceedings under this

rule regarding either of

the foregoing pleas; or

4. Any statement made in the

course of plea discussions

with an attorney for the

government which do not

result in a plea of guilty

or which result in a plea

of guilty later withdrawn

However, such a statement is ad-

missible:

(i) in any proceeding wherein

another statement made in the

course of the same plea or

plea discussions had been in-

troduced and the statement

Ought in fairness by consid-

ered contemporaneously with it,

(ii) in a criminal proceeding

for perjury or false statement

if the statement was made by the

Defendant under oath, on the

record, and in the presence

of counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.