Petition for Writ of Certiorari — Schwimmer v. United States

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. Supreme Court, US. 4s

FILED

NOV 13 198°

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE outta STADES.

OCTOBER TERM, 1989

MARTIN SCHWIMMER,

Petitioner,

~against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway, Suite 2515

New York, New York 10007

(212) ~ 513-7676

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Attorneys for Petitioner

Martin Schwimmer

Victoria B. Eiger

Of Counsel

QUESTIONS PRESENTED FOR REVIEW

i. Whether the United States may compel a

defendant whose federal conviction is on

appeal to testify before the grand jury,

under a grant of immunity pursuant to 18

U.S.C. §§6002-03, without violating the

defendant’s Fifth Amendment right to due

process and Sixth Amendment right to the

effective assistance of counsel.

2. Whether the United States may compel a

defendant whose federal conviction is on

appeal to testify before the grand jury,

under a grant of immunity pursuant to 18

U.S.C §§6002-03, without violating the

defendant’s Fifth Amendment right to

remain silent and his privilege against

self-incrimination.

3. Whether the federal prosecutor’s

interrogation of the defendant before the

grand jury outside his counsel’s presence

violates the ethical rules against

communication with a party known to be

represented without the consent of his

attorney.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.......... i

TABLE OF CONTENTS... 2.2 e eee cccccccccces iii

TABLE OF AUTHORITIES. .....-eeseeeeeccees Vv

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED...........-. ix

OPINIONS BELOW... ccc eee eccceccecccccces xiii

JURISDICTION OF THE COURT........2e2e00- xiii

STATEMENT OF THE CASE......eeeeeeececces 2

REASONS FOR GRANTING THE WRIT

ARGUMENT

AN INDICTED DEFENDANT --

INCLUDING ONE WHOSE CONVICTION

IS ON APPEAL -- DOES NOT OWE

THE GRAND JURY HIS TESTIMONY,

AND CANNOT BE COMPELLED TO GIVE

TTP wcccccccccccccccccces eeccccccccs 15

A. The Sixth Amendment And The

Due Process Clause Of The

et, FF Fe 17

B. The Fifth Amendment’s Right

To Remain Silent And

Privilege Against Self-

Incrimination, And The

Court’s Supervisory Power....... 35

- iii -

C. The Ethical Violation........... 44

Ce COC CCO CO OEEESOEESESEOEEOEEOCSES 46

APPENDIX

Opinion of the United States

Court of Appeals for the

Second Circuit (August 1, 1989)....A-1

Order of the United States

Court of Appeals for the Second

Circuit (August 1, 1989)........... A-17

Order denying petition for

rehearing and suggestion for

rehearing en banc

(September 14, 1989) .......ccceceee A-19

Oral ruling rendered by the

United States District Court

SEU Me BOOP cecccceccececcescece A-21

Order of the United States

District Court

Dn Cs MD avec cccccccéccecces A-25

- iv =

TABLE OF AUTHORITIES

CASES

Anders v. California,

386 U.S. 738 (1967) 2... cece eee nccncecces 20

Blair v. United States,

SSO GeBe SIS CADAD) ccocccccccccccccceses 15

Doe v. United States,

__ U.S. __, 108 S.Ct. 2341 (1989)...... 39

Evitts v. Lucey,

469 U.8. JST (1988) .ccccccscccccccsccsses 17,20

Gilbert v. California,

388 U.S. 263, 388 U.S. 218 (1967) “ee © @ © 20

Grosso v. United States,

Se St I cnn wecccaceececeoses 42

In re Grand Jury Subpoena,

543 F.Supp. 985 (S.D.N.Y¥. 1982)........ 37

In re Liddy,

506 F.2d 1293 (B.C. CaP. 1974) ccccccces 37

In re Snyder,

nn on cc nccccceseeess 44

Kastigar v. United States,

406 U.S. 444 (1972)

eeecesccccccesccesee eel, 453, 24,25,30,36,37,38

Kirby v. Illinois,

406 U.S. 682 (1972) ..ccccccccccscccccess 16

Maine v. Moulton,

ee es I nw waco ccsecesesesess 18,19

Massiah v. United States,

377 U.S. 201, 84 S.Ct. 1199 (1964)..... 17,22

McMann v. Richardson,

2 es. rr

McNabb v. United States,

318 U.S. 332 ¢\) }) PP e*eees#eeee#es#?s¢ 42

Michigan v. Jackson,

475 U.S. 625 (1986)... ceeees eee*eee#ee#ee#e?#e* 18,24

Nix v. Whiteside, 457 U.S. 157,

106 S.ct. 988 (1986) e*eee#es eeee*ev#wtijee##e#ee#e#e#* 28

Perry v. Leeke,

_. U.S. __, 109 S.Ct. 594 (1989).......27

Powell v. Alabama,

ee REN PEP wo cb ccccccccceceseses oa?

Rochin v. California,

342 U.S. 165 (1952)........ cceeecsescese 35

Schmerber v. California

384 U.S. 757 (1966)...........-. cose nees 42

United States v. Anzalone,

555 F.2d 317 (2d Cir.),

aff’d on rehearing,

560 F.2d 492 (2d Cir. 1977),

cert. denied, 434 U.S. 1015 (1978)..... 36,38

United States v. Apfelbaun,

445 U.S. 115 (1980)... cece ee eeneee

United States v. Borello,

624 F.Supp. 150 (E.D.N.Y. 1985).....

United States v. Boyd,

765 F.2d 1524 (l1ith Cir. 1985)......

United States v. Calandra,

SE OD ccc ccc ccc cc ccccs

United States v. Crowson,

828 F.2d 1427 (9th Cir. 1987).......

United States v. Doss,

563 F.2d 265 (6th Cir. 1977)........

United States v. Gallo,

859 F.2d 1078 (2d Cir. 1988),

cert. denied, 109 S.Ct. 2428 (1989)...

United States v. Gouveia,

I RM oc ccc cece cece

United States v. Hammad,

858 F.2d 834 (2d Cir. 1988).........

United States v. Kember,

648 F.2d 1354 (D.C. Cir. 1980)

SO EE Sab ccccccscccccccccccccs

United States v. Kurzer,

534 F.2d 511 (2d Cir. 1976).........

United States v. Lawn,

115 F.Supp. 674 (S.D.N.Y. 1953).....

- vii - |

United States

v. Mandujano,

425 U.S. 564

(1976) wccccccccccccce

United States v. Mariani,

851 F.2d 595 (2d Cir. A9GES) wcccces

United States

v. Massiah,

307 F.2d 62 (2d Cir. 1962),

rev’d on other grounds,

377 U.S. 201

United States

CAmOSP ccccccccccceccs

v. Semkiw,

712 F.2d 891

United States

(3d Cir. 1983).......

v. Tantalo,

680 F.2d 903

United States

(2d Cir. 1982)...... .

388 U.S. 218

- viii -

U.8.

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULESINVOLVED

Const. amend. V:

-+-nor shall [any person] 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...

Const. amend. VI:

In all criminal prosecutions, the accused

shall enjoy the right ... to have the

Assistance of Counsel for his defence.

28 U.8.C. § 1826 provides:

(a) Whenever a witness in any proceeding

before or ancillary to any court or grand

jury of the United States refuses without

just cause shown to comply with an order

of the court to testify or provide other

information, including any book, paper,

document, record, recording or other

material, the court, upon such refusal,

or when such refusal is duly brought to

its attention, may summarily order his

confinement 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 --

- ix -

(1) the court proceeding, or

(2) the term of the grand jury,

including extensions, before which such

refusal to comply with the court order

occurred, but in no event shall such

confinement exceed eighteen months.

(b) No person confined pursuant to

subsection (a) of this section shall be

admitted to bail pending the

determination of an appeal taken by him

from the order for 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

practicable, but not later than thirty

days from the filing of such appeal.

18 0.8.C. §6002:

Whenever a witness refuses, on the basis

of his privilege against self-incrimination,

to testify or provide other information in a

proceeding before or ancillary to --

(1) a court or grand jury of the United

States,

(2) an agency of the United States, or

(3) either House of Congress, a joint

committee of the two Houses, or a committee or

a subcommittee of either House,

and the person presiding over the

proceeding communicates to the witness an

order issued under this part, the witness may

not refuse to comply with the order on the

basis of his privilege against self-

incrimination; 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 a prosecution for perjury, giving

a false statement, or otherwise failing to

comply with the order.

18 U.8.C. § 6003:

(a) In. the case of any individual who has

been or may be called to testify or provide

other information at any proceeding before or

ancillary to a court of the United States or a

grand jury of the United States, the United

States district court for the judicial

district in which the proceeding is or may be

held shall issue, in accordance with

subsection (b) of this section, upon the

request of the United States attorney for such

district, an order requiring such individual

to give testimony or provide other information

which he refuses to give or provide on the

basis of his privilege against self-

incrimination, such order to become effective

as provided in section 6002 of this part.

(b) A United States attorney may, with

the approval of the Attorney General, the

Deputy Attorney General, the Associate

Attorney General or any designated Assistant

Attorney General or Deputy Assistant Attorney

General, request an order under subsection (a)

of this section when in his judgment....

(1) the testimony or other

information from such individual may be

necessary to the public interest; and

- xi-

(2) such individual has refused or

is likely to refuse to testify or provide

other ‘nformation on the basis of his

privileye against self-incrimination.

D.R. 7-104 of The American Bar Association’s

Code of Professional Responsibility, in

pertinent part:

(A) During the course of his

representation of a client a lawyer shall not:

(1) Communicate or cause another to

communicate on the subject of

the representation with a party

he knows to be represented by a

lawyer in that matter unless he

has the prior consent of the

lawyer representing such other

party or is authorized by law to

do so.

- xii -

OPINIONS BELOW

The opinion of the district court was

rendered orally; that ruling is reproduced in

the appendix at A-19.

The decision of the Court of Appeals for

the Second Circuit is reported at 882 F.2d 22

(2a Cir. 1989), and is reproduced in the

appendix at A-1.

JURISDICTION OF THE COURT

The judgment of the Court of Appeals is

dated August 1, 1989. (A-17) On September

14, 1989, the Court of Appeals denied

rehearing and rehearing en banc. (A-19) This

Court has jurisdiction to review the judgment

by writ of certiorari pursuant to 28 U.S.C.

1254(1).

- xiii -

INTRODUCTION

—

This case presents an important question

of first impression: whether a federal

defendant whose conviction is pending appeal

may be called to testify before a grand jury

and, upon a grant of immunity pursuant to 18

U.S.C. §§6002-03, compelled to answer

questions about the subject matter of his

trial and conviction. The Court of Appeals

for the Second Circuit railed that this

procedure did not violate the defendant’s due

process rights, his Fifth Amendment privilege

against self-incrimination or his Sixth

Amendment right to counsel.? This ruling

cannot be reconciled with settled Fifth and

Sixth Amendment principles.

the Court also ruled that the prosecutor

could question Petitioner before the grand

jury without violating Disciplinary Rule 7-

104(A)(1) of the American Bar Association’s

Code of Professional Responsibility.

a ie eh il AS nel ne

More important, perhaps, the reasoning of

the Court of Appeals compels a more troubling

conclusion: the government need not even wait

until it obtains a conviction to call an

indicted defendant before the grand jury and

force him to testify, without counsel, about

his alleged crimes. According to the Court of

Appeals, as long as his compelled testimony is

immunized, he has no legitimate cause to

complain.

For the reasons which follow, Petitioner

submits that the decisions of this Court

foreclose this result. Moreover, the Court of

Appeals’ decision is a dramatic departure from

generally accepted notions about the operation

of the American system of criminal justice.

STATEMENT OF THE CASE

On June 16, 1987, Petitioner Martin

Schwimmer was indicted by the grand jury for

the Eastern District of New York. He was

nell

charged, inter alia, with knowingly receiving

fees or kickbacks for the investment of funds

of employee benefit plans, in violation of

federal law. The government believed that, in

addition to receiving illegal fees himself,

Petitioner made illegal payments to unknown

union officials. These illegal kickbacks were

alleged as part of a RICO count, but not as

separate, substantive crimes.

Petitioner entered a plea of not guilty,

denying that he had received, or made, any

illegal payments. Following a jury trial at

which he elected not to testify, he was

convicted of illegal receipt of fees, certain

tax offenses, and violating the RICO act. He

was sentenced on February 14, 1989, and

promptly filed a notice of appeal. His appeal

from the conviction was argued before the

Court of Appeals for the Second Circuit on

-3-

August 18, 1989, and is presently pending

before that Court. He was granted bail

pending the appeal.

Immediately after sentence was

pronounced, in a highly unusual step which is

now sure to become a standard part of the

prosecutor’s arsenal, Petitioner was served

with a subpoena commanding him to appear

before the grand jury.

According to the prosecutor, the grand

jury which issued the subpoena differs from

the one that indicted Petitioner. However,

the investigation concerns the same subject

matter as Petitioner’s trial. Specifically,

the new grand jury is seeking information

about the suspected illegal payments to union

officials. Indeed, the Strike Force Attorney

who was handling the grand jury matter was the

Same attorney who prosecuted Schwimmer.

In discussions concerning the subpoena,

the prosecutor represented to Petitioner’s

counsel that, if Petitioner were to testify in

the grand jury consistent with his plea of not

guilty -- that is, if he were to deny

receiving illegal fees and making payoffs to

union officials -- the prosecutor would seek

an indictment against him for perjury.

On the adjourned return date of the

subpoena, Petitioner declined to testify,

invoking his Fifth and Sixth Amendment rights.

He also asserted that it is ethically improper

for the prosecutor to question him before the

grand jury without the presence of his

attorney in light of the pending indictment

and the pendency of the appeal from his

conviction. Petitioner was then given an

order, signed by a United States District

Judge, granting him immunity, pursuant to 18

U.S.C. §§ 6002-03. Petitioner persisted in

his refusal to testify.

Petitioner moved to quash the subpoena;

the government moved for an order of contempt

and confinement, pursuant to 28 U.S.C. § 1826.

The matter was set before the Honorable Joseph

M. McLaughlin, the district judge who had

presided at Petitioner’s trial.

At the hearing, Petitioner reasserted his

Fifth and Sixth Amendment rights and argued

that the prosecutor’s conduct was ethically

improper. In an oral ruling from the bench,

Judge McLaughlin rejected Petitioner’s claims.

He concluded that Petitioner’s Fifth Amendment

right against self-incrimination was defeated

by the immunity order. (A-22) He also ruled

that the Sixth Amendment guaranteed Schwimmer

2He did not address Petitioner’s ethics claim

but implicitly rejected it.

nothing more than the right to have counsel

outside the grand jury room, a right which the

government had not infringed. (A-22,23)

According to Judge McLaughlin, the

pending appeal was inconsequential to the

issue at hand. In his view, there would be no

interference with the effective assistance of

counsel because nothing Petitioner said before

the grand jury could be used against him

either in the pending appeal, or at any future

retrial. (A-23)

Judge McLaughlin found Petitioner in

contempt, and summarily ordered him confined.

However, he granted Petitioner bail pending

the determination of an expedited appeal from

the order of contempt. (A-25)

Petitioner took an expedited appeal to

the Second Circuit. At oral argument in that

Court, the government conceded that, for Fifth

and Sixth Amendment purposes, it made no

difference that Petitioner had already been

tried and convicted. According to the

government, there was nothing to stop it from

compelling any person -- before or after

indictment, before or after trial -- to

testify before the grand jury. The panel

seemed troubled by the startling implications

of the government’s argument, as well as its

implicit trivialization of the appellate stage

of the proceedings.

Nevertheless, by decision dated August l,

1989, the Court of Appeals affirmed the

district court’s finding of contempt and its

order of confinement. (A-1) Like the

district court, it ruled that Petitioner’s

Fifth Amendment claim was defeated by the

grant of immunity. According to the panel the

transcript of the first trial would furnish a

record against which to compare the

government’s proof at the second trial, and

thus could assure that the government did not

use the compelled testimony against him at

re-trial. (A-8) The Court agreed with

Petitioner that non-evidentiary uses of the

testimony would violate his rights -- for

example, the government’s use of his testimony

to focus additional investigation, or to

fashion cross-examination or otherwise map a

strategy for retrial. The panel suggested

that the government could guard against non-

evidentiary uses of the compelled testimony by

establishing a “Chinese Wall.” (A-9,10)

The panel, however, did not address

Petitoner’s claim that there could be no

guarantee that the government would not use

the compelled testimony invidiously against

him on the appeal, and no way to ascertain

whether or not it had done so.

~~ Pa

The panel also rejected Petitioner’s

Sixth Amendment claim. The Court of Appeals

agreed that Petitioner’s Sixth Amendment right

to assistance of counsel attached with the

return of the indictment and continued during

the pendency of his appeal. (A-10,11) But the

Court agreed with the district court that the

right to counsel did not include the right not

to be interrogated by the prosecutor without

the presence of his counsel within the grand

jury room. (A-12)

The Court also rejected Petitioner’s

Sixth Amendment claim that his answers to the

grand jury’s questions could interfere with

his right to counsel by foreclosing certain

arguments and strategies his counsel might

otherwise pursue. The Court ruled that

defense counsel were not entitled to remain

ignorant of their client’s guilt or innocence

and would not be foreclosed from making

- 10 =

sufficiency arguments even for a client known

to be guilty. (A-12,13) It did not, however,

address Petitioner’s specific claim under Nix

v. Whiteside, 457 U.S. 157 (1986): to wit, if

Petitioner inculpated himself before the grand

jury, counsel would be ethically foreclosed

from asserting Petitioner’s innocence -- a not

irrelevant matter either on appeal or at a

retrial.

Finally, the Court of Appeals rejected

Petitioner’s contention that the prosecutor’s

questioning of him before the grand jury would

violate Disciplinary Rule 7-104(A)(1) of the

American Bar Association’s Code of

Professional Responsibility. It ruled that

the questioning of a represented defendant

before the grand jury without the consent and

outside the presence of his counsel was

“authorized by law” and thus did not violate

the disciplinary rule. (A-14,15)

-ill-

Rehearing and rehearing en banc were

denied by order dated September 14, 1989.

(A-19)

SUMMARY OF ARGUMENT

The Court of Appeals has held that the

prosecutor may properly subpoena an indicted

defendant to appear before the grand jury and

that the court may compel] him to testify,

under penalty of contempt, about the very

charges on which he stands indicted.

According to the Second Circuit, as long as

the defendant is granted immunity from use and

derivative use of the compelled testimony in

subsequent criminal proceedings, and as long

as the defendant is permitted to confer with

counsel outside the grand jury room, the

defendant’s rights -- including his Fifth

Amendment right against self-incrimination and

his Sixth Amendment right to the assistance of

counsel -- are not infringed.

- 12-

In this case, the subpoenaed defendant

had pled not guilty, declined to testify at

his trial, and had already been tried and

convicted of the crimes charged in the

indictment. An appeal from that conviction

is, and remains, pending.

But the reasoning of the Court of Appeals

compels the conclusion that the government

need not even have waited until after trial

and conviction to haul the defendant before

the grand jury and force him to testify about

the facts underlying his indictment. If the

Court of Appeals is right, then the government

is free to indict a defendant, and subpoena

him to testify before the grand jury at any

time before, during, or after his trial -- and

prosecutors will have every incentive to do

so.

- 13 =

This procedure, which now bears the

imprimatur of the Second Circuit, represents a

startling break in tradition and a sea change

in the relationship between the government and

the accused. Its full ramifications can

scarcely be imagined.

Petitioner contends that this novel

procedure runs afoul of several basic

Constitutional principles long recognized by

this Court. In addition, it conflicts with a

ruling of the Court of Appeals for the Sixth

Circuit, sitting en banc. For these reasons,

the writ of certiorari should be granted and

the correctness of the Second Circuit’s ruling

should be considered by this Court.

- 14 -

ARGUMENT

AN INDICTED DEFENDANT --

INCLUDING ONE WHOSE

CONVICTION IS ON APPEAL --

DOES NOT OWE THE GRAND

JURY HIS TESTIMONY, AND

CANNOT BE COMPELLED TO

GIVE IT

It is generally true that all persons

have an obligation to give testimony before

the grand jury when properly summoned. The

rule, however, is “not without exception.”

The duty, “so onerous at times, yet so

necessary to the administration of justice ...

is subject to mitigation in exceptional

circumstances.* Blair v. United States, 250

U.S. 273 (1919). See also Kastigar v. United

States, 496 U.S. 444, 4435 (1972). The grand

jury’s subpoena power, like other powers it

possesses, is broad, but not unlimited.

United States v. Calandra, 414 U.S. 338, 346

(1974).

- 15 -

Until this case, it has always been

assumed that once a person has been indicted,

he becomes an “exceptional” case. See, e.g.,

Kirby v. Illinois, 406 U.S. 682, 688-89

(1972)). Whether by reason of the Fifth

Amendment’s self-incrimination or due process

clauses, or the Sixth Amendment’s guarantee of

effective assistance of counsel, once the

government has indicted, the defendant may

invoke his right to remain silent. It has

seemed beyond question that, from that point

on, the government could not force him to

answer questions about the charges, nor

interrogate him secretly without the presence

of his attorney.

Through narrow, formalistic, and

incorrect analysis of the precedents of this

Court, the Court of Appeals has profoundly

altered the fundamental rules of the game.

A. The Sixth Amendment And The Due Process

Clause of the Fifth Amendment

The Sixth Amendment guarantees the

accused the effective assistance of counsel.

Evitts v. Lucey, 469 U.S. 387, 395 (1985);

McMann v. Richardson, 397 U.S. 759, 771 n.14

(1970); Powell v. Alabama, 287 U.S. 45 (1932).

Forcing Petitioner to testify before the grand

jury while he is under indictment and his

appeal is pending violates this Sixth

Amendment right. Cf. United States v. Wade,

388 U.S. 218 (1967); Massiah v. United States,

377 U.S. 201 (1964).

A grand jury witness -- even one who is a

“target” of the investigation or a “putative”

defendant -- has no Sixth Amendment right to

counsel in the grand jury room. Under Sixth

Amendment jurisprudence, however, this Court

has suggested, but never held, that an

indicted defendant stands in a markedly

different position. In United States v.

3petitioner’s Sixth Amendment rights attached

(footnote continued)

-17<-

Mandujano, 425 U.S. 564 (1976), Chief Justice

Burger expressly recognized the distinction

between an indicted defendant and a person not

under indictment in the grand jury context.

Acknowledging the rule that a grand jury

witness has no Sixth Amendment right to

counsel in the grand jury room, Chief Justice

Burger contrasted that situation with that

where the witness is under indictment. After

(footnote continued from previous page)

when the indictment was returned against hin.

Michigan v. Jackson, 475 U.S. 625 (1986);

United States v. Gouveia, 467 U.S. 180, 188

(1984). Indeed, the courts below recognized

that this was so.

Those courts however failed to recognize

that, when adversarial proceedings commenced

against him with the indictment’s return,

Petitioner’s relationship with the government

underwent critical change. With the

initiation of formal charges, the Sixth

Amendment guaranteed Petitioner “the right to

rely on counsel as a ‘medium’ between him and

the State.” Maine v. Moulton, 474 U.S. 159,

176 (1985). Consequently, from the time of

his indictment forward, the government was

foreclosed from questioning him either before

the grand jury or elsewhere without his

consent or outside his lawyer’s presence.

- 18 =

stating that a grand jury witness, even one

who is a target of the investigation, has the

right to assistance of counsel, but not in the

grand jury room, Chief Justice Burger aptly

noted:

That statement [is] plainly a

correct recital of the law.

No criminal proceedings had

been instituted a 31-3

ndent. h the Sixth

right to counsel had

not come into play.

Id. at 581 (emphasis added).

The clear and necessary corollary is that

the grand jury witness who has been indicted

can invoke the Sixth Amendment’s protection.

From the time of his indictment, he is

entitled to rely on counsel as a medium

between him and the prosecuting authority.

See Maine v. Moulton, 474 U.S. 159, 176

(1985). That the defendant has been tried and

convicted leaves undiminished the rationale

for Chief Justice Burger’s distinction if the

- 19 -

_— atti pate

conviction is the subject of a pending appeal.

This is so because the effective assistance of

counsel protected by the Sixth Amendment

stretches from indictment to the conclusion of

the case, which encompasses all viable direct

appeals. See Evitts v. Lucey, 469 U.S. 387,

404-05 (1985); Anders v. California, 386 U.S.

738, 744 (1967).

Two lines of cases forming the pillars of

the Sixth Amendment’s guarantee of effective

assistance of counsel show why the distinction

referred to by Justice Burger has constitional

roots. First, in United States v. Wade, 388

U.S. 218 (1967), and Gilbert v. California,

388 U.S. 263 (1967), this Court emphatically

rejected the notion that the Fifth Amendment’s

privilege against self-incrimination runs

coterminously with the Sixth Amendment.

There, this Court held that no Fifth Amendment

‘violation occurs when an accused is indicted

- 20 -

and then placed in an identification line-up.

But this Court made clear that this did not

dispose of the Sixth Amendment concerns which

arise where a person is subjected to a post-

indictment line-up without counsel present.

The Sixth Amendment’s right to counsel

guarantee, this Court recognized, focuses on

the adversary nature of the criminal justice

systen.

Viewed in this light, the Sixth

Amendment guarantee “encompasses counsel’s

assistance whenever necessary to assure a

meaningful ‘defense.’” United States v. Wade,

supra, 388 U.S. at 225.

This

view that

is linked

Amendment

rooted in

Court unambiguously rejected the

the Sixth Amendment right to counsel

solely to protection of Fifth

rights. The Sixth Amendment is

the broader and more fundamental

principle that in addition to

counsel’s presence at trial,

the accused is guaranteed that

he need not stand alone against

the State at any stage of the

- 21-

Se ee ee ee

prosecution, formal or

informal, in court or out,

where counsel’s absence might

derogate from the accused’s

right to a fair trial. The

security of that right is as

much the aim of the right to

counsel as it is of the other

guarantees of the Sixth

Amendment....

Id. at 226-27.

The second line of cases has its genesis

in Massiah v. United States, 377 U.S. 201

(1964). There, this Court warned that

Any secret interrogation of the

defendant, from and after the

finding of the indictment,

without the protection afforded

by the presence of counsel,

! contravenes the basic dictates

of fairness in the conduct of

1 criminal cases and the

fundamental rights of persons

charged with crimes.

Id. at 205.

The concern for fairness in the criminal

justice process which animates the Wade and

ae ee ee .

Massiah line of cases was ignored by the

courts below. Calling an indicted defendant

- 22 -

Acai

before the grand jury is paradigmatically “a

case where a defendant [is] in danger of being

tricked by a lawyer’s artfully contrived

questions into giving his case away.” United

States v. Massiah, 307 F.2d 62, 66 (2d Cir.

1962), rev’d on other grounds, 377 U.S. 201

(1964).

Justice Brennan was right:

the government may not in the

absence of an intentional and

_ knowing waiver call an indicted

defendant before a grand jury

and there interrogate him

concerning the subject matter

of a crime for which he already

stands formally charged. Lawn

v. United States, 355 U.S. 339

(1958).

United States v. Mandujano, supra, 425 U.S. at

594 (Brennan, J., concurring).

The Court of Appeals found Massiah’s ban

on secret interrogations inapplicable because,

unlike Massiah, Petitioner has been granted

use immunity. According to the Court of

Appeals, “Kastigar completely answers

- 23-

[Petitioner’s] constitutional objections.”

(A-12) Contrary to the Court of Appeals’

belief, Kastigar does not address, let alone

“answer,” the Sixth Amendment objection. The

Court of Appeals embraced Kastigar as the

panacea to all constitutional objections

because it apparently viewed the Fifth

Amendment as coterminous with the Sixth

Amendment. As Chief Justice Burger suggested

in Mandujano, and as this Court has long

recognized, Petitioner’s status as an indicted

person triggers Sixth Amendment protections

which extend beyond the Fifth Amendment’s

privilege against self-incrimination. See

also Michigan v. Jackson, 475 U.S. 629 (1986)

(an accused’s Sixth Amendment right to counsel

applies even where the Fifth Amendment is not

implicated).

- 24 -

The Court of Appeals paid lip service to

these principles but held that, given the

grant of immunity, the Sixth Amendment

guaranteed Petitioner nothing more than the

right to have counsel outside the grand jury

room with whom he might consult. The ruling

effectively nullifies the Sixth Amendment in

_ the grand jury context. Significantly, it

does so upon a misconceived view of the Sixth

Amendment’s relationship to the Fifth

Amendment privilege against self-

incrimination.

Kastigar does not fully answer

Petitioner’s Sixth Amendment concerns. The

immunity conferred under 18 U.S.C. §6002 is as

broad as, but no broader than, the privilege

against self-incrimination. United States v.

Apfelbaum, 445 U.S. 115, 122 (1980). It is not

at all clear, for example, especially in the

Second Circuit, that the immunity order would

- 25 -

preclude non-evidentiary use of the compelled

testimony by the prosecutor in the course of

framing or arguing the appeal. See United

States v. Mariani, 851 F.2d 595 (2d Cir.

1988); United States v. Crowson, 828 F.2d 1427

(9th Cir. 1987); United States v. Boyd, 765

F.2d 1524 (1ith Cir. 1985). But see United

States v. Semkiw, 712 F.2d 891 (3d Cir. 1983).

Moreover, the immunity order does not

address or purport to address the myriad ways

independent of the prosecutor’s use of the

testimony in which the prosecutor’s

interrogation of the Petitioner may tie

defense counsel’s hands, both on the appeal or

at a subsequent retrial. The government

violates the right to effective assistance of

counsel when it interferes in certain ways

with the ability of counsel to make

independent decisions about how to conduct the

- 26 -

mill ae a Oa a

defense.” Perry v. Leeke, U.S. _, 109

S.Ct. 594, 599 (1989). The interrogation the

government seeks will inevitably do just that.

Defense counsel, for example, will be

bound by the Petitioner’s answers. to questions

which the grand jury and the prosecutor choose

to put, questions which defense counsel may

have deliberately refrained from asking. Put

most starkly, if the prosecutor is permitted

to ask Petitioner whether or not he is guilty,

and if, in response, Petitioner inculpates

himself, defense counsel will be ethically

foreclosed from arguing his innocence on the

appeal, or putting him on the witness stand at

a future retrial.

As tc the first concern, the government

has argued that Petitioner’s real guilt or

innocence is irrelevant to the appeal and that

all that matters for appellate purposes is

what is already in the district court record.

- 27 <-

The Court of Appeals did not take so narrow a

view, and did not embrace the notion that a

defendant’s guilt or innocence is beside the

point at the appellate level. It nonetheless

rejected the argument, and did so, Petitioner

Claims, without good or adequate reasons, and

without real appreciation of how interrogation

of the Petitioner under oath before his

conviction has become final will interfere

with his lawyer’s ability to vigorously and

properly represent him on the appeal.

If there is a retrial -- and Petitioner

submits that there is a substantial likelihood

that his conviction will be reversed and a new

trial ordered -- the interference with the

defense will be even more palpable. Following

Nix v. Whiteside, 475 U.S. 157 (1986), many

highly ethical lawyers have made the decision

not to ask a client whether he is guilty or

innocent. Surely the government may not

- 28 -

require a defense lawyer to ask his client

that question, because a truthful answer may

increase the risk of conviction by precluding

the defense lawyer from calling defense

witnesses to the stand. Yet calling the

indicted defendant in front of a grand jury

has the same effect as compelling a defense

lawyer to ask his client whether he is guilty.

That is why the government was forced to

concede at oral argument that it would be

improper to ask an indicted defendant whether

he is guilty before his trial, even if a

“Chinese Wall” were created.

For good reasons, our system of justice

does not permit the government to require a

defendant to enter his plea of not guilty

under oath and to subject him to a perjury

prosecution if he is convicted of the

underlving crime. Compelling an indicted

defendant -- whose appeal and request for a

- 29 -

La » e®

§-5A

_ -

= ‘

: ¥

* :

P = : 7

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(ii = :

- 3

1 as

; 4 '

: ; ' ; iu : Pag a a :

fit

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+ ; iT f , : As he : ae) RACV ahath :

: i i —

i wae A C wl } : =. 3s Pris Y pe ore: @

——————e orreerrreer er

we RE Ni re R IF tee ba oe

retrial are pending -- to answer the grand

jury’s questions about guilt or innocence

under oath, is functionally indistinguishable

from requiring him to plead not guilty under

oath. That is inconsisent with our long-

established system of permitting a defendant

to plead not guilty without swearing that he

is not guilty. The Court of Appeals’ decision

failed to address this important issue.

In addition to these concerns, in the

event of a reversal of Petitioner’s conviction

and a retrial, the unfair tactical advantage

the prosecutor will have gained through having

questioned the defendant will be impossible to

assess or to remedy. Theoretically, the Fifth

Amendment self-incrimination problem might be

resolved through a Kastigar hearing. The

Sixth Amendment problem cannot. Therefore,

the invasion of the Sixth Amendment right

should be enjoined before it occurs.

- 30 -

— Pe ee SN i Ail Le ea Ps

The Sixth Amendment issue is by itself an

important one. Moreover, as matters now

stand, a conflict exists in the circuits. In

United States v. Doss, 563 F.2d 265 (6th Cir.

1977) (en banc), the Sixth Circuit roundly

condemned as an abuse of the grand jury

process the practice of calling an indicted

defendant before the grand jury to interrogate

him about the facts underlying the charged

offense. Indeed, in the Doss case, the entire

grand jury proceeding was declared void, and

the defendant’s conviction for perjury based

on false testimony he gave the grand jury was

reversed. In Doss, to be sure, the defendant

was unaware that he had already been charged

in a sealed indictment when he was called

before the grand jury, and the en banc court

was concerned that the government had

improperly sought his testimony as a discovery

device on the underlying charge.

Nevertheless, the Court’s holding and its

reasoning are equally applicable here: “where

a substantial purpose of calling an indicted

defendant before the grand jury is to question

him secretly and without counsel present ...

the proceeding is an abuse of process which

violates both the right to counsel provision

of the Sixth Amendment and the due process

Clause of the Fifth Amendment.” Id. at 276.

Citing United States v. Lawn, 115 F.Supp. 674,

677 (S.D.N.Y¥. 1953), the Doss Court said:

When a person under our system

of law has been indicted for a

crime, the government has no

more right to call him before a

grand jury and question him

about that crime than it has to

call an unwilling defendant to

the stand during trial of the

case.

563 F.2d at 275. It went on to note that:

the dearth of precedent for our

instant case is probably due to

the fact that most prosecutors

would readily perceive that the

- 32 -

practice undertaken here was

fundamentally repugnant to the

American system of justice.

Id. at 278.

Just as the prosecutorial conduct at

issue in Doss was condemned, so too should the

conduct engaged in here.

No principled Sixth Amendment distinctiozr

exists which turns on whether the defendant is

subpoenaed to testify before his trial, or

after his trial but while his appeal is

pending. Indeed, if the government’s position

is accepted, there is no Sixth Amendment bar

to hauling a defendant before the grand jury

during his trial, or between verdict and

sentence. In each of these situations, the

defendant and the prosecutor are in an

adversarial relationship. In each, the

defendant is constitutionally entitled to the

help of a lawyer. in every one, the defendant

is at risk of jeopardizing his case.

- 33 -

The Court of Appeals’ decision not only

sanctions, but encourages the indictment of a

person followed on the heels with a subpoena

to testify before the grand jury. It is hard

to conceive of a situation where the

government does not believe that an individual

it has indicted could give valuable

inculpatory information about another

individual.‘ Indeed, where more than one

defendant has been indicted, the prosecutor

would surely covet the opportunity to put each

one before the grand jury to testify about the

involvement of the other co-defendant or co-

defendants. Under the Court of Appeals

4any prosecutor would also relish the

opportunity to have the defendant’s testimony

under oath prior to trial if only for the

psychological advantage it gives him, to

prevent him from testifying or discourage

inconsistent testimony at trial, or to provide

the vehicle for a subsequent perjury

indictment in the event the defendant is

acquitted or, if convicted, his sentence is

not severe enough to satisfy the prosecutor.

The implications of this procedure for the

plea bargaining process are also enormous.

- 34 -

ruling, so long as such testimony is not used

at trial against the testifying defendant, he

has no reason to resist or to complain. But

an extraordinary restructuring of the criminal

justice system will have occurred. Given the

“congeries of interrelated constitutional

considerations” acknowledged by the Court of

Appeals (A-5), this Court should consider

whether such a restructuring of the system can

truly co-exist with the Constitutional

guarantees protected by the Fifth Amendment’s

due process clause and the Sixth Amendment’s

guarantee of the right to counsel. Cf. Rochin

v. California, 342 U.S. 165 (1952).

B. The Fifth Amendment’s Right To Remain

Silent And Privilege Against Self-

Incrimination, And The Court’s Supervisory

Power

Petitioner submits that, under the Fifth

Amendment, as a criminal defendant, he has a

right to remain silent which is broader than

the privilege against self-incrimination. His

- 35 -

right to remain silent means just that.

Whether or not his answers would incriminate

him, he is guaranteed the dignity of remaining

mute in the face of the government’s charges.

Because the right to remain silent is

broader than the privilege against self-

incrimination, Kastigar and the prohibition of

“use” of the coerced testimony does not answer

Petitioner’s concerns.»

Sas the Kastigar Court noted, ”... a grant of

immunity must afford protection commensurate

with that afforded by the privilege [against

self-incrimination].” 406 U.S. at 453; United

States v. Tantalo, 680 F.2d 903, 908 (2d Cir.

1982); United States v. Kurzer, 534 F.2d 511

(2a Cir. 1976). The government bears the

heavy burden of proving that its evidence is

derived from a legitimate source wholly

independent of the compelled testimony.

Kastigar v. United States, supra, 406 U.S. at

460. In the usual context, where the

immunized testimony was brief or on a

tangential subject, the Kastigar burden can be

carried at a hearing at which the government

shows the requisite independent source and/or

that a “Chinese wall” was built around the use

of the immunized testimony. See United States

v. Anzalone, 555 F.2d 317 (2d Cir.), aff’d on

rehearing, 560 F.2d 492 (2d Cir. 1977), cert.

denied, 434 U.S. 1015 (1978).

(footnote continued)

- 36 -

Moreover, if, as the Court below held,

Kastigar does defeat Petitioner’s Fifth

Amendment, compulsory self-incrimination

claim, ° then this may be an appropriate case

for reconsideration of Kastigar and its

(footnote continued from previous page)

In cases where a convicted defendant is

compelled to testify about the subject of his

just-concluded trial the nature of the inquiry

changes. Some courts have noted that the

“use” question with respect to a retrial is

not ripe until the appellate court reverses.

See United States v. Kember, 648 F.2d 1354

(D.c. Cir. 1980) (per curiam). Others have

said that the transcript of the first trial

constitutes the independent source and thus,

so long as the second trial follows the script

of the first, Kastigar is satisfied. See

United States v. Borello, 624 F.Supp. 150

(E.D.N.Y. 1985). See also In re Liddy, 506

F.2d 1293 (D.C. Cir. 1974); In re Grand Jury

Subpoena, 543 F.Supp. 985 (S.D.N.Y. 1982).

With all due respect, this approach is

unrealistic.

Trials are not videotapes which are

identical whenever they are replayed. People

learn from experience. They disregard what

was ineffective at the first trial and

emphasize what they now believe was not

highlighted sufficiently the first time. In

the unique context where the trial lawyer for

the government subsequently interrogates the

(footnote continued)

- 37 -

implications.

Stripping this case to its essentials, it

is plain that the grand jury subpoena, if

enforced, will obligate the defendant to make

(footnote continued from previous page)

defendant before a grand jury, in the absence

of his adversary and without the protection of

the court, and elicits the defendant’s version

of the facts, it is not reasonable to believe

that on a retrial the government will not use

immunized testimony “in any respect.” United

States v. Kastigar, supra, 406 U.S. 463;

United States v. NeDaniel- supra, 449 F.2d

832; United States v. Anzalone, supra, 555

F.2d 317.

Spetitioner maintains, and maintained below,

that, under Second Circuit precedent, §§6002-

03 is not co-extensive with his Fifth

Amendment rights against self-incrimination,

and thus could not defeat his Fifth Amendment

Claim. In United States v. Gallo, 859 F.2d

1078 (2d Cir. 1988), cert. denied, 109 S.Ct.

2428 (1989), the Second Circuit held, over a

dissent, that a harmless error rule applies to

the government’s use of evidence derived from

a defendant’s prior immunized grand jury

testimony. In other words, in the Second

Circuit, notwithstanding the Fifth Amendment

and 18 U.S.C. §6002, a defendant will not be

heard to complain if his coerced immunized

testimony is used against him to obtain a

conviction, unless he can also show that the

Constitutional error affected the outcome of

the proceeding.

- 38 -

testimonial communications which are or may be

incriminating, ” a concern which is at the very

core of the Fifth Amendment’s guarantee.

Recently, in Doe v. United States, __

U.S. __, 108 S.Ct. 2341, 2348-49 (1989), this

Court said:

Historically, the privilege

{against self-incrimination]

was intended to prevent the use

of legal compulsion to extract

from the accused a sworn

communication of facts which

would incriminate him. Such

was the process of the

ecclesiastical courts and the

Star Chamber -- the

inquisitorial method of putting

the accused upon his oath and

compelling him to answer

questions designed to uncover

’to the extent this argument assumes that

Petitioner would inculpate himself, it does so

because it is one of two logical alternatives,

and because it is the scenario which the

prosecutor postulates as the very reason for

the subpoena. The other logical alternative

is that Petitioner would maintain his

innocence, consistent with his plea of not

guilty. This latter scenario hardly

eliminates the problem he faces for, if he so

testifies, based upon the guilty verdict

already “establishing” his guilt, the

prosecutor threatens to indict him for

perjury.

- 39 -

uncharged offenses, without

evidence from another source.

See Andresen v. Maryland, 427

U.S. 463, 470-471, 96 S.Ct.

2737, 2743-2744, 49 L.Ed.2d 627

(1976); 8 Wigmore §2250; E.

Griswold, The Fifth Amendment

Today 2-3 (1955). The major

thrust of the policies

undergirding the privilege is

to prevent such compulsion.

The Self-Incrimination Clause

reflects “’a judgment ... that

the prosecution should [not] be

free to build up a criminal

case, in whole or in part, with

the assistance of enforced

disclosures by the accused’”

(emphasis added). Ullmann v.

United States, 350 U.S. 422,

427, 76 S.Ct. 497, 501, 100

L.Ed. 511 (1956), quoting

Maffie v. United States, 209

F.2d 225, 227 (CAl1 1954).

The Court in Murphy v.

Waterfront Comm’n, 378 U.S. 52,

84 S.Ct. 1594, 12 L.Ed.2d 678

(1964), explained that the

privilege is founded on “”’our

unwillingness to subject those

suspected of crime to the cruel

trilemma of self-accusation,

perjury or contempt; our

preference for an accusatorial

rather than an inquisitorial

system of criminal justice; our

fear that self-incriminating

statements will be elicited by

inhumane treatment and abuses;

our sense of fair play which

- 40 -

dictates ‘a fair state-

individual balance by requiring

the government to leave the

individual alone until good

cause is shown for disturbing

him and by requiring the

government in its contest with

the individual to shoulder the

entire load,’ ...; our respect

for the inviolability of the

human personality and of the

right of each individual ‘to a

private enclave where he may

lead a private life,’ ...; our

distrust of self-deprecatory

statements; and our realization

that the privilege, while

sometimes ‘a shelter to the

guilty,’ is often ‘a protection

to the innocent,’” Id., at 55,

84 S.Ct., at 1596-1957

(citations omitted).

Virtwally all of these policies are

undermined by permitting the government to

compel an indicted defendant to testify before

the grand jury under penalty of contempt, even

if use of that testimony against him is

prohibited.

Granted, it has been said that “the scope

of the privilege does not coincide with the

complex of values it helps to protect.”

- 41 =-

1 — Se ee ae a ee

7 - ¥

‘~

7 #

i | 6

Te :

. !

{ i

4 : : :

— = % a 4 7 7 u y 7 *s

“a =. —_— =e =s 0-2 7 q ome ean aS a ee oe ee en ee a od vie Tow UL ee a ve

Schmerber v. California, 384 U.S. 757, 761

(1966); Grosso v. United States, 390 U.S. 62,

72-73 (1968) (Brennan, J., concurring). But

where the questioned practice undermines so

many of the policies underlying the privilege,

and in addition so fundamentally alters the

existing balance between the power of the

government and the sovereignty of the

individual, then perhaps the scope of the

privilege must be redefined. At the very

least, the Fifth Amendment question is an

important and an interesting one which should

be considered by this Court. Whether the

prosecutor’s conduct is proscribed by the

Fifth Amendment itself, or should be declared

inappropriate in the exercise of the Court’s

supervisory authority over the administration

of criminal justice in the federal courts, see

McNabb v. United States, 318 U.S. 332 (1943),

are questions which are fundamental to the

- 42 -

eee

behavior of all federal prosecutors and to the

operation of the criminal justice system as a

whole.

- 43 -

Cc. The Ethical Violation

This case presents another, non-

Constitutional issue which deserves this

Court’s attention: whether the prosecutor’s

interrogation of the indicted defendant before

the grand jury violates DR 7-104(A)(1) of the

American Bar Association’s Code of

Professional Responsibility, reprinted in N.Y.

Jud. Law. app. D.R. 7-104 (McKinney 1975) .°

DR 7-104(A)(1) provides:

During the course of his

representation of a client a

lawyer shall not:

1. Communicate or cause another

to communicate on the

subject of a representation

with a party he knows to be

represented by a lawyer in

that matter unless he has

Sthe federal courts enforce professional

responsibility standards pursuant to their

general supervisory authority over members of

the bar. In re Snyder, 472 U.S. 634, 645 n.6

(1985). In addition, the Eastern District of

New York, where this action arose, has adopted

the Code of Professional Responsibility

through local Rule 2 of its General Rules.

United States v. Hammad, 858 F.2d 834, 837 (2d

Cir. 1988).

- 44 -

the prior consent of the

lawyer representing such

other party or is authorized

by law to do so.

The Court of Appeals held that the

prosecutor’s interrogation of Petitioner in

the grand jury would not violate this rule

because the prosecutor’s actions are “clearly”

authorized by law.?

(A-15) Petitioner submits

that the subpoena of an indicted defendant to

testify before the grand jury, even where he

has been granted immunity, is not authorized

by law, over the defendant’s objection, and

that this question, apparently one of first

impression, deserves this Court’s

consideration.

*rhe Court cited only Fed. R. Crim. P. 6(d)

(prohibiting presence of counsel, other than

attorneys for the government, inside the grand

jury room) and concluded that Petitioner was

lawfully subpoenaed as part of a continuing

criminal investigation. (A-15)

- 45 -

CONCLUSION

For the above stated reasons, the

Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Nathan Z. Dershowitz

Dershowitz & Eiger, P.C.

225 Broadway, Suite 2515

New York, New York 10007

(212) 513-7676

Alan M. Dershowitz

232 Brattle Street

Cambridge, MA 02138

(617) 495-4617

Attorneys for Petitioner

Martin J. Schwimmer

Of Counsel

Victoria B. Eiger

Dated: November 10, 1989

New York, New York

- 46 -

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1116—August Term 1988

(Argued April 12, 1989 Decided August 1, 1989)

Docket No. 89-6048

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

_—V

MARTIN SCHWIMMER,

Defendant-Appellant.

Before:

NEWMAN, CARDAMONE and WINTER

Circuit Judges

—— —-—~>

Appellant Martin J. Schwimmer appeals from a finding

of contempt and a summary order of confinement entered

on March 14, 1989 in the United States District Court for

the Eastern District of New York (McLaughlin, J.) pursu-

ant to 28 U.S.C. § 1826(a).

Affirmed.

ALAN M. DERSHOWITZ, Cambridge, Massa-

chusetts (Nathan Z. Dershowitz, Victoria

B. Eiger, Dershowitz & Eiger, P.C., New

York, New York, of counsel), for

Defendant-Appellant.

MATTHEW J. BRIEF, Special Attorney, Orga-

nized Crime Strike Force, Eastern District

of New York, Brooklyn, New York

(Bruce Maffeo, Special Attorney, Orga-

nized Crime Strike Force, Eastern District

of New York. Andrew J. Maloney,

United States Attorney, Eastern District

of New York, Edward A. McDonald,

Attorney-in-Charge, Organized Crime

Strike Force, Eastern District of New

York, Brooklyn, New York, of counsel),

for Plaintiff-Appellee.

CARDAMONE, Circuit Judge:

The principal issue on this appeal is whether a defendant

who has been tried, convicted, and whose appeal is pend-

ing may be granted use immunity and then be compelled to

testify before a grand jury on matters that were the subject

of his conviction, even though his appeal may result in a

retrial of those offenses about which he gave compelled

testimony. We believe the testimony of such a defendant

may be compelled. Hence, we affirm.

4812

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ine mets hatte 7

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ee ae

bit

et)

I FACTS

Appellant Martin Schwimmer takes this expedited

appeal from a March 14, 1989 order of confinement

imposed pursuant to 28 U.S.C. § 1826(a) (1982) in the

United States District Court for the Eastern District of

New York (McLaughlin, J.). The order appealed from

resulted from Schwimmer’s refusal, after having been

granted use immunity pursuant to the provisions of 18

U.S.C. § 6002 (1982), to testify before a grand jury.

On June 16, 1987 a grand jury sitting in the Eastern Dis-

trict of New York indicted Schwimmer for receiving illegal

employee benefit plan payments, 18 U.S.C. § 1954 (1982),

engaging in a racketeering conspiracy, 18 U.S.C. § 1962

(1982), and tax evasion, 26 U.S.C. § 7201 (1982). Appel-

lant entered a plea of not guilty, elected not to testify at his

jury trial, and was convicted of the charged offenses. The

convictions derived from his management of $100 million

of assets for the benefit plans of two New York unions—

Local 810 of the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America and

Local 38 of the Sheetmetal Workers International Associ-

ation of the AFL-ClO—from which he skimmed $14 mil-

lion in concealed commissions. In addition to the receipt

of illegal payments from the funds, appellant was con-

victed under the RICO count of making millions of dollars

in payoffs to various Local 810 officials.

Following his conviction, Schwimmer was sentenced on

February 14, 1989 to 10 years imprisonment, fined $1.6

million, and ordered to forfeit $4.5 million. At the close of

the sentencing proceedings, he was served with a subpoena

that demanded his appearance before a grand jury investi-

gating the criminal activities of the union officials to

4813

A-3

whom Schwimmer had made illicit payments. The govern-

ment has represented to us that the grand jury before

which appellant’s testimony is sought is not the same

grand jury that indicted him, though the same Assistant

United States Attorney who prosecuted him is handling

the current grand jury matter.

On the adjourned return date of the subpoena, Schwim-

mer appeared and was served with a February 22, 1989

order of Chief Judge Platt of the Eastern District directing

him to testify under grant of use immunity. The testimony

sought to be elicited related primarily to the participation

of various union officials in the kickback schemes that

were the subject of appellant’s conviction. Schwimmer’s

judgment of conviction is currently on appeal before this

Court. See United States v. Schwimmer, No. 89-1106 (2d

Cir. appeal docketed Mar. 9, 1989). Despite the grant of

immunity, Schwimmer refused to testify. Instead, he

invoked his rights under the Fifth and Sixth Amendments

to the United States Constitution, and also asserted that it

was ethically improper for the prosecutor to question him

before the grand jury without his attorney being present.

A hearing regarding appellant’s refusal to testify was

scheduled for March 14, 1989 before Judge McLaughlin,

who had presided over Schwimmer’s trial. Prior to the

hearing, appellant moved to quash the subpoena on con-

stitutional grounds. The government, in turn, moved for a

finding of contempt and for a summary order of confine-

ment pursuant to 18 U.S.C. § 1826. After oral argument,

Judge McLaughlin denied Schwimmer’s constitutional

claims, concluding that his Fifth Amendment right to be

free from self-incrimination was fully protected by the

terms of Chief Judge Platt’s immunity order, and that the

Sixth Amendment merely guaranteed appellant the right

4814

A-4

to have his attorney present for consultation outside the

grand jury room—a right of which he had availed himself.

Further, with respect to the effect of the compelled testi-

mony on Schwimmer’s appeal, the district court ruled that

there was no denial of the effective assistance of counsel

because none of appellant’s compelled testimony could be

used by the government in any proceedings, including his

appeal or subsequent retrial. Accordingly, it held appel-

lant in contempt for his unjustified refusal to testify

before the grand jury and entered the order of confine-

ment. The district court also determined that an expedited

appeal from its order would neither be frivolous nor taken

for purposes of delay. It therefore granted bail pending

our resolution of the issues raised by Schwimmer’s appeal.

See 28 U.S.C. § 1826(b) (1982).

II DISCUSSION

Appellant raises three separate challenges to the order

of confinement. He argues that questioning a convicted

defendant before a grand jury about the events that are the

subject of his conviction while his appeal is pending is an

abuse of the grand jury process that violates (1) his Fifth

Amendment right against self-incrimination, (2) his Sixth

Amendment right to the effective assistance of counsel,

and (3) the provisions of the Code of Professional Respon-

sibility prohibiting lawyers from communicating directly

with opposing parties known to be represented by counsel.

In essence, Schwimmer asserts that granting him use

immunity under 18 U.S.C. § 6002 will not cure the consti-

tutional transgressions that will occur if he is required to

testify. These arguments present a congeries of interre-

lated constitutional considerations For purposes of clarity,

we address each contention in order.

4815

A-5

A. Fifth Amendment

The Fifth Amendment states that no person ‘‘shall be

compelled in any criminal case to be a witness against him-

self... .’’ U.S. Const. amend. V, cl. 3. Appellant’s

principal contention is that the grant of use immunity is

insufficient to protect this right if he is compelled to testify

while his appeal is pending. Speculating about the possibil-

ity of a retrial and about prospective non-evidentiary use

by the government of his coerced, immunized testimony

Schwimmer asserts that there is no means of preventing

such improper use short of adopting a “‘prophylactic’’ rule

that would bar compulsion of the testimony in the first

instance.

We begin discussion by analyzing the purpose of immu-

nity statutes. The Supreme Court has repeatedly noted

that such statutes are ‘‘part of our constitutional fabric.’’

Ullmann v. United States, 350 U.S. 422, 438 (1956)

(quoted in Kastigar v. United States, 406 U.S. 441, 447

(1972)). As recognized in Kastigar, they seek to strike a

balance between constitutional protections against com-

pulsory self-incrimination and the government’s power to

enforce the criminal laws effectively by compelling testi-

mony before grand juries. 406 U.S. at 446. The constitu-

tionality of the use immunity statute—18 U.S.C.

§ 6002-——here at issue, has been upheld by the Supreme

Court, which stated that the grant of such immunity must

afford the witness protection commensurate with that

which would have resulted had he been permitted to

invoke the Fifth Amendment privilege against self-

incrimination. Jd. at 452-53. Stated another way, the grant

of immunity must leave the witness ‘‘ ‘in substantially the

same position as if the witness had claimed his privilege’ in

the absence of a grant of immunity.’’ Jd. at 458-59 (quot-

4816

A-6

aa’ .

ing Murphy v. Waterfront Comm’n, 378 U.S. 52, 79

(i1964)).

This rule permits the compulsion of incriminating testi-

mony, but bars any use—derivative or otherwise—of the

testimony so obtained. Section 6002 provides a ‘‘sweeping

proscription’’ of any direct or indirect use of the testi-

mony, including its use as an investigatory lead, or as a

means of focusing an investigation on the witness. See

Kastigar, 406 U.S. at 460. Further, once the witness has

testified under a grant of immunity, the government bears

the burden of demonstrating that its proof in a subsequent

proceeding was derived from a wholly-independent

source, untainted by the immunized testimony. See Mur-

phy, 378 U.S. at 79 n.18. A defendant raising a claim that

the provisions of § 6002 have been violated ‘“‘need only

show that he testified under a grant of immunity in order

to shift to the government the heavy burden of proving

that all of the evidence it proposes to use was derived from

legitimate independent sources.’’ Kastigar, 406 U.S. at

461-62.

Hence, we hold that Xastigar and the cases that fol-

lowed it refute appellant's Fifth Amendment claim. So

long as the government proves that its evidence at any sub-

sequent retrial is derived from sources independent of the

immunized testimony, the grant of use immunity to obtain

testimony from a convicted defendant whose appeal is

pending does not violate the Fifth Amendment. Other cir-

cuits have reached the same conclusion. See United States

v. Kember, 648 F.2d 1354, 1362-63 (D.C. Cir. 1980) (per

curiam); United States v. Pantone, 634 F.2d 716, 719 (3d

Cir. 1980); Jn re Liddy, $06 F.2d 1293, 1301 (D.C. Cir.

1974) (en banc); United States v. Kelly, 464 F.2d 709, 712-

13 (Sth Cir. 1972); see also United States v. Wilson, 488

4817

A-7

F.2d 1231, 1233 (2d Cir. 1973) (holding that use immunity

is a sufficient answer to the Fifth Amendment claim of a

defendant who has pled guilty, but has not yet been sen-

tenced), rev'd on other grounds, 421 U.S. 309 (1975).

In fact, any retrial would itself provide a unique gauge

by which the government’s compliance with the dictates of

Kastigar could be measured. That is to say, in the event of

reversal on appeal and defendant’s retrial, the transcript

of the evidence at the first trial would furnish a record

against which to compare the goverument’s proof at the

second trial. Armed with that record, the trial court could

readily determine whether the government had deviated

from the proof offered during the first trial and could then

require the government to carry its burden of proving that

any evidence not presented at the first trial was derived

from sources wholly independent of the immunized testi-

mony. See, e.g., Pantone, 634 F.2d at 719. Thus, any sub-

sequent claim by appellant that the government had made

any use of his immunized testimony at a putative retrial

would be subjected to the district court’s evaluation of

whether the government had met its burden of showing

that the challenged proffer was derived from independent

sources. See United States v. Gallo, 859 F.2d 1078, 1083

(2d Cir. 1988), cert. denied, 104 L. Ed.2d 986 (1989);

United States v. Mariani, 851 F.2d $95, 601 (2d Cir. 1988),

cert. denied, 109 S. Ct. 1654 (1989).

The primary case relied upon by appellant for the prop-

osition that compulsion of his testimony is barred by the

Fifth Amendment is United States v. Doss, 563 F.2d 265

(6th Cir. 1977) (en banc). Doss is readily distinguishable

from the instant appeal. There a defendant who was the

subject of two sealed indictments was called as a witness

before a grand jury and questioned regarding the crimes

4818

A-8

with which, unbeknownst to him, he had already been

charged. In that case, the Sixth Circuit concluded that it

was ‘‘clear. . . that the government deliberately and pur-

posefully employed the grand jury in questioning an

already indicted defendant about the crime for which he

was soon to be tried.’’ Jd. at 271. It condemned the prose-

cutor’s use of the grand jury process as a discovery device,

ruling that such abuse violates a defendant’s Sixth Amend-

ment right to counsel and his Fifth Amendment right to

due process. Jd. at 276.

Here, we discern no such improper motive on the gov-

ernment’s part. The purpose of calling appellant before

the grand jury is to obtain information regarding the iden-

tity of unapprehended individuals allegedly involved with

him in the conspiracy as recipients of the payoffs. Unlike

Doss, we cannot conclude that the government’s actions

were taken for the impermissible purpose of gathering evi-

dence against the appellant-witness. In short, appellant’s

challenge to the order on Fifth Amendment grounds fails

because the grant of immunity removes the risk of incrimi-

nation and makes that Amendment inapplicable.

Before leaving the discussion of the Fifth Amendment,

we add a final comment. Although, as noted, the record of

the first trial supplies the necessary safeguard against

which to compare any overt prosecutorial change in strat-

egy undertaken at a second trial, concern remains that

access to and knowledge of possibly self-incriminating

grand jury testimony might affect a retrial in subtle ways,

not immediately perceptible either to the district judge or

to subsequent panels of this Court. In the case at bar, for

example, the non-evidentiary use of the compelled

testimony—so disquieting to appellant—is use that might

assist the prosecutor in focusing additional investigation,

4819

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planning, cross-examination, or otherwise generally map-

ping a strategy for retrial. See United States v. McDaniel,

482 F.2d 305, 311 (8th Cir. 1973). Even though the issue

will not ripen unless and until Schwimmer’s conviction is

reversed and he is retried, we think that the government

should consider taking steps to ensure that any subsequent

proceedings are not tainted by individual prosecutorial

access to the coerced testimony. Without deciding the

issue, it would appear prudent for the government in the

event of a retrial to establish a so-called ‘‘Chinese Wall’’

between its prosecutors exposed to the present grand jury

testimony—the ordering of which is the subject of this

appeal—and those prosecutors who may be assigned to

retry defendant. See United States v. Semkiw, 712 F.2d

891, 895 (3d Cir. 1983) (adopting such approach); U.S.

Dep’t of Justice, United States Attorneys’ Manual § 1-

11.400, at 21 (1987) (to demonstrate that mo non-

evidentiary use has been made of the compelled testimony,

prosecution should be handled by an attorney unfamiliar

with its substance).

B. Sixth Amendment

Appellant’s next contention is that his testimony before

the grand jury without counsel present while his appeal is

pending violates his Sixth Amendment right to the effec-

tive assistance of counsel. This claim raises an issue of first

impression in this Circuit. The Sixth Amendment pro-

vides: ‘‘In all criminal prosecutions, the accused shall

enjoy the right. . . to have the Assistance of Counsel for

his defense.’’ U.S. Const. amend. VI. Because Schwim-

mer is the subject of ongoing adversarial proceedings—

currently on appeal to this Court—there is no doubt that

his right to the effective assistance of counsel has attached.

4820

A-10

See, e.g., United States v. Gouveia, 467 U.S. 180, 188

(1984); Kirby v. Illinois, 406 U.S. 682, 688 (1972); Powell

v. Alabama, 287 U.S. 45, 69-70 (1932). His right to the

assistance of counsel continues during the pendency of his

appeal. See Evitts v. Lucey, 469 U.S. 387, 404-05 (1985);

Anders v. California, 386 U.S. 738, 744 (1967). Thus,

appellant asserts that any questioning by the prosecutor

outside the immediate physical presence of his counsel vio-

lates the Sixth Amendment. We cannot agree.

In United States v. Mandujano, 425 U.S. 564, 581

(1976), the Court observed that a grand jury witness who

had a right to the assistance of counsel could not insist that

his attorney accompany him into the grand jury room.

Appellant claims that his conviction raises entirely differ-

ent Sixth Amendment concerns unaddressed by Mandu-

jano because no criminal proceedings had been instituted

against Mandujano. Schwimmer then directs our attention

to Massiah v. United States, 377 U.S. 201 (1964), where

the Supreme Court stated that ‘‘[a]ny secret interrogation

of the defendant, from and after the finding of the indict- _

ment, without the protection afforded by the presence of

counsel, contravenes the basic dictates of fairness in the

conduct of criminal causes and the fundamental rights of

persons charged with crime.’’ Jd. at 205 (quoting People v.

Waterman, 9 N.Y .2d 561, 565 (1961)). Relying on this lan-

guage in Massiah, appellant contends that had criminal

charges been brought against Mandujano, he would have

been entitled to have counsel accompany him in the grand

jury room. Thus, because he has already been indicted and

convicted, and his appeal is pending, the argument goes,

he too has an absolute right to his lawyer’s presence when

questioned.

4821

A-11

Schwimmer’s arguments overlook the fact that, unlike

the defendant in Massiah, he has been granted use immu-

nity under § 6002 in exchange for his testimony. Thus, the

rationale of Xastigar completely answers appellant’s con-

stitutional objections: no valid constitutional objection

lies so long as the government cannot use the compelled

testimony against Schwimmer in any fashion. Accord-

ingly, a defendant’s right to counsel when a grand jury

appearance is at issue extends only to the right to consult

counsel outside the grand jury room. Here Schwimmer

had the right to leave and did leave the grand jury room

for consultations with his attorney. The protections inher-

ent in a grant of use and derivative use immunity under

§ 6002 are sufficient to defeat appellant’s constitutional

challenges to the compulsion of his testimony in the grand

jury room, outside the immediate physical presence of

counsel. Cf. United States v. Kember, 648 F.2d 1354,

1363-64 (D.C. Cir. 1980) (per curiam) (rejecting argument

that coerced immunized testimony intruded upon

attorney-client relationship).

Appellant’s additional arguments under the Sixth

Amendment are without merit. First, contrary to Schwim-

mer’s contention, the attorney-client relationship will not

be impermissibly encroached upon by the compulsion of

his testimony. Nothing that we decide can be read to pro-

scribe Schwimmer’s proper invocation of the attorney-

client privilege. See United States v. Calandra, 414 U.S.

338, 346 (1974). In any event, the answers sought to be

elicited concern matters that transpired prior to the initia-

tion of an attorney-client relationship between appellant

and his present counsel of record.

Second, Schwimmer contends that his answers in the

grand jury may ethically foreclose his counsel from mak-

4822

A-12

ing arguments concerning his innocence on appeal. We

recognize that it is a powerful argument for counsel to

stand before an appellate tribunal and represent that his

client is innocent. The common law has historically been

imbued with the belief that ‘‘it is better that ten guilty per-

sons escape, than that one innocent suffer.’’ 4 W. Black-

stone, Commentaries on the Laws of England, ch. 27

(1769), which capsulizes a similar notion Voltaire

expressed two decades earlier. Yet, at the same time it is

essential to the just administration of the criminal law that

the guilty be swiftly and certainly subject to punishment.

Bator, Finality in Criminal Law and Federal Habeas Cor-

pus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963).

We understand counsel’s argument to mean that his client

is innocent of the crimes charged, in other words, not

guilty beyond a reasonable doubt of those crimes in light

of the evidence that was properly or should properly have

been before the jury. His opportunity to argue that his cli-

ent is not guilty is not diminished by Schwimmer being

compelled to testify. Counsel’s point amounts to nothing

more than that—like an ostrich hiding its head in the

sand—if counsel does not hear or know of his client’s

guilt, he can proclaim his innocence. Even if appellant’s

truthful answers before the grand jury establish his guilt,

and even assuming counsel thereafter learns of those

answers, Schwimmer’s appellate attorney certainly is not

foreclosed from raising arguments concerning the suffi-

ciency of the government’s proof at trial that established

appellant’s guilt. In fact, counsel would be ethically obdii-

gated to raise such arguments regardless of his knowledge

or lack of knowledge of his client’s innocence.

In sum, the use and derivative use immunity afforded

Schwimmer pursuant to § 6002 adequately protects

against any infringement of his Sixth Amendment rights.

4823

A-13

: = at a a a a

—_—

}

His testimony has not been sought as an impermissible dis-

covery device as was the case in Doss, his attorney will be

available for consultation at all times outside the grand

jury room, and he can invoke the attorney-client privilege

whenever necessary and appropriate. Thus, the compul-

sion of Schwimmer’s testimony before the grand jury

under a grant of immunity does not infringe his Sixth

Amendment right to the effective assistance of counsel.

C. Code of Professional Responsibility

Appellant’s final contention is that the prosecutor may

not question him before the grand jury without violating

Disciplinary Rule 7-104(A)(1) of the American Bar Associ-

ation’s Code of Professional Responsibility, reprinted in

N.Y. Jud. Law app. Dr 7-104 (McKinney 1975) that pro-

vides:

A. During the course of his representation of a client

a lawyer shall not:

1. Communicate or cause another to communi-

cate on the subject of a representation with a

party he knows to be represented by a lawyer

in that matter unless he has the prior consent

of the lawyer representing such other party or

is authorized by law to do so.

Schwimmer argues that DR 7-104{A)(1) proscribes a pros-

ecutor from questioning before a grand jury a convicted

defendant known to be represented by counsel.

This argument fails because Schwimmer’s grand jury

appearance and questioning fall within the ‘‘authorized by

iaw”’ language of Rule 7-104(A)(1). That is, even though

the questioning is without opposing counsel’s consent, the

4824

A-14

prosecutor’s actions are clearly ‘‘authorized by law’’

within the contemplation of the language of DR 7-

104(A)(1). Cf. Fed. R. Crim. P. 6(d) (prohibiting presence

of counsel, other than attorneys for the government,

inside the grand jury room). As part of a continuing crimi-

nal investigation appellant has been lawfully subpoenaed

to testify before the grand jury in order to “‘illuminate the

shadowy precincts of corruption and crime."’ United

States v. Mandujano, 425 U.S. at 573. He is not the target

of that investigation, his testimony is immunized pursuant

to § 6002, and he may consult with counsel any time out-

side the grand jury room. Accordingly, the prosecutor’s

direct questioning of Schwimmer before the grand jury

outside the presence of his counsel is authorized by law

and therefore does not violate the Code of Professional

Responsibility.

Our recent decision in United States v. Hammad, 858

F.2d 834 (2d Cir. 1988), is not to the contrary. In Ham-

mad, a prosecutor provided an informant with a sham

subpoena and arranged for the taping of the informant’s

conversation with the defendant, even though the prosecu-

tor knew the defendant was represented by counsel. Jd. at

836. When the defendant was subsequently indicted,

partly as a result of the recordings made by the informant,

we held that the prosecutor had committed an ethical vio-

lation, but limited the holding to the circumstances of that

case. We declined to adopt a bright line rule delineating

when actions would violate DR 7-104(A)(1) and left the

question of what constitutes a violation of the ethical stan-

dards to be determined on a case-by-case basis. Jd.

Unlike Hammad, we discern here no improper purpose

on the prosecutor’s part in his subpoenaing Schwimmer to

testify. Consequently, because the prosecutor's question-

4825

A-15

ing of Schwimmer before the grand jury is ‘‘authorized by

law,’’ it does not transgress DR 7-104(A)(1).

III CONCLUSION

For the reasons above stated, the order holding defen-

dant in civil contempt and directing his confinement until

such time as he testifies before the grand jury is affirmed.

4826

RECORD PRESS, INC., 157 N.Y. 10007 (212) 619-4949

Az as

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

EDNY 89 cv 0831 McLaughlin

At a stated Term of the United States

Court of Appeals for the Seccnd Circuit, held

at the United States Courthouse in the City of

New York, on the First day of August, one

thousand nine hundred and eighty-nine.

Present:

HON. JON O. NEWMAN,

HON. RICHARD J. CARDAMONE,

HON. RALPH K. WINTER

Circuit Judges,

UNITED STATES OF AMERICA, DOCKET NUMBER

89-6048

Plaintiff-Appellee,

-v- UNITED STATES

COURT OF APPEALS

MARTIN SCHWIMMER, FILED

2G -1 1989

Defendant~-Appellant. ELAINE B. GOLDSMITH,

CLERK

SECOND CIRCUIT

Appeal from the United States District

Court for the Eastern District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Eastern District of New

York, and was argued by counsel.

A-17

OF Pane ee ee ee ee ee eee eee ———- a a. ee Sy

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged and decreed that the

order of said District Court be and it hereby

is affirmed in accordance with the opinion of

this court with costs to be taxed against the

appellant.

Elaine B. Goldsmith,

Clerk

/3s/

By: Edward J. Guardaro,

Deputy Clerk

ISSUED AS MANDATE: Nov. 2, 1989

A-18

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse, in the City

of New York, on the 14th day of September, one

thousand nine hundred and eighty-nine.

UNITED STATES OF AMERICA, DOCKET NUMBER

89-6048

Plaintiff-Appellee,

-v- UNITED STATES

COURT OF APPEALS

MARTIN SCHWIMMER, FILED

SEP 14 1989

Defendant-Appellant. ELAINE B. GOLDSMITH,

CLERK

SECOND CIRCUIT

A petition for rehearing containing a

suggestion that the action be reheard in banc

having been filed herein by defendant-

appellant, Martin Schwimmer,

Upon consideration by the panel that

heard the appeal, it is

Ordered that said petition for rehearing

is DENIED.

It is further noted that the suggestion

for rehearing in banc has been transmitted to

the judges of the court in regular active

A-19

service and to any other judge that heard the

appeal and that no such judge has requested

that a vote be taken thereon.

ELAINE B. GOLDSMITH

Clerk

A-20

ORAL RULING RENDERED MARCH 14, 1989 BY THE

HONORABLE JOSEPH M. MCLAUGHLIN, U.S.D.J.

THE COURT: If you will take your seats. This

is a motion by the government to hold the

defendant Martin Schwimmer in civil contempt.

The posture of the record is this. The

defendant was tried before this Court and was

convicted and sentenced, and on the date of

the sentence was served with a subpoena to

appear before a different grand jury from the

one that indicted him, but a grand jury that

was basically looking into the same matters

that lead to the first Schwimmer indictment.

The defendant invoking his Fifth and

Sixth Amendment privileges refused to testify

before that grand jury. An order was signed

by Chief Judge Platt on February 22 of this

year giving the defendant use immunity for any

testimony he would give before this second

grand jury.

A-21

The defendant has steadfastly refused to

testify, arguing that both his Fifth and Sixth

Amendment rights are infringed by this

government tactic.

As to his Fifth Amendment rights the

defendant has been given complete use immunity

in the Judge Platt order. Any testimony he

gives before this second grand jury cannot be

used against him in any way nor can it be used

as the fountain head of leads to develop other

evidence against hin.

The Sixth Amendment rights raised by the

defendant are a little more elusive to pin

down. It is clear that the defendant does not

have the right to counsel before the grand

jury. What he has is a right to have counsel

outside the grand jury room with whom he can

confer when necessary. That right has been

and will continue to be accorded to the

defendant.

A-22

Thus, his right to counsel vis-a-vis the

second grand jury has not been infringed. It

there is any infringement on the defendant’s

right to counsel it has to be with respect to

the Schwimmer conviction. That case is

presently wending its way through the Circuit

Court of Appeals.

Counsel has made an argument that the

second grand jury would in some fashion chill

his advocacy in that appeal.

I find the argument unpersuasive. The

rock bottom fact remains that nothing said

before the second grand jury can be used in

any fashion against the defendant and that

would include on appeal.

The Court is, therefore, satisfied that

the defendant’s right to counsel has been

observed in all respects.

The Court, therefore, agrees with Judge

Platt that the defendant must appear before

the grand jury and must answer the questions

put to him by the government.

* * *

The Court, therefore, finds that the

defendant Schwimmer is in seehennt and under

1826A. The Court summarily orders his

confinement to the custody of the Attorney

until he gives testimony before the grand jury

as ordered by the Court.

A-24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, :

CR 87-423 (JMM)

Plaintiff, :

ORDER

-against- $.

MARTIN SCHWIMMER, :

Defendant. :

THIS matter having come before the Court

on the application of defendant Martin

Schwimmer, pursuant to Fed. R. Crim. Pro.

17(c), for an order quashing a grand jury

subpoena dated February 14, 1989, and on the

application of the United States, pursuant to

28 U.S.C. §1826(a), for an order of

confinement in accordance with the civil

contempt provisions of 28 U.S.C. §1826,

For the reasons set forth in the Court’s

oral ruling this date, pursuant to 28 U.S.C.

§1826, this Court finds the defendant Martin

A-25

Schwimmer in contempt, and summarily orders

that he be confined until such time as he is

willing to give testimony.

It is further ordered, pursuant to 28

U.S.C. §1826(b), that defendant Martin

Schwimmer be admitted to bail pending the

determination of the appeal from the order of

confinement, this Court having found that the

appeal is neither frivolous nor taken for

delay.

Ls/

Joseph M. McLaughlin

United States

District Judge

Dated: March 14, 1989

A-26

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.