# Opposition Brief — Grove Press, Inc. v. Flask > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0271%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 915 ## Text oe ae Pr i Statutes ae soar sia Section 750 Judiciary Law: 6f the. State of New York provides: : Power 7 F Corts to Puxisy FOR C RIMIN AL Con NTEMPTS a a. A court of record has power to punish for a criminal conten {, a person euilty of any of the follow ing nets, Zand no Sthers : ore , Disorderly, : contemptuous, ‘or insolent be- } ae committed during its Sitting, in its'imme- diate view and. presence, and directly tending to interrupt its proceedings, or to impair the re- - ct due to its authority. » : . Breaeli of the peace, “noise, sor other vere: ~ ance, directly tending to inferrupt its .pro- ~ ceedings, a. W ilful disobcdiency to its lawful manidate. 4. Resistance wilfully offered to its -dawful mandate. >. Contumacious ‘and unlawful refusal to be sworn. as a witness; or,*after being sworn, to answer any legal and prope r-interrogatory. | 6. Publieation of a false, or grossly’ inaccurate -report of its proceedings. ‘ But a court cannot. punish as a contempt, the publication of a true, full, and fair report of a trial, argument, deci- sion, or other proéeeding therein. 7. Wilful failure to obey any mandate, process . or notice issued - “pursuant to articles ‘sixteen, ‘eventeen, eighteen, cighteen-a or. cighteen-b of the Judiciary Law, or to-rules ‘adopted pursuant - thereto, or to any other statute relating thereto, or refusal to be sworn as provided therein, or _ subjection of an ics esate to discharge or pen- ™. ™~ eo alty on account of his absence from employment by reason of jury’ service in violation.of this chapter. Applications to punish the aceused for a contempt specific ‘din this subdivision may be made by notice of motion or by order to shafy. cause, and shall be made returnable at the term _, of the Supreme Court at w ‘hich contested motions : - are heard, or of the county. court if the Supreme Court is not in session.’’ Section 619-¢ of the New York State:Code of Criminal Procedure’provides for the granting of immunity as follows: Q ‘such answer given or evidence produce -* weer Eres Sheananiey? as used in this section’ means that such person shall not be prosecuted or subjected ~to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced ‘evidence, gnd that no doin be re- ceived against him upon ary criminal proceeding. But he nay nevertheless be prosecuted or “subject ted to > penalty or forfeiture for any perjury or contempt committed In answ ering, or fajling to answer, or in producing or failing to produce evidence, in accord~ ‘ance with the‘ orde ir, and any such answer given or evidence produced shall be admissible against him ‘upon any criminal proceeding coneerning such per- jury or contempt.”’ a of the Facts The petitioner Rastelli had, been subpoenaed before a Kings County Grand Jury, the last of ‘which such appear- ances was on February 5,1970. He was asked certain ques-. tions and he asserted his Fifth ‘Rnendonchs privilege. 4. v ; : ~ : ‘Thereupon in the manner prescribed by law, the petitioner was granted full and complete statutory immunity pursuant to statute. Despite said grant of statutory immunity, the | petitioner persisted inf his refusal to answer any and@all questions. As a result thereof he was served with an order to shown cause to punish him for ¢ontempt. The petrtioner appeared before Mr. Justice Helfayd and wa’ held in con- tempt on-April 30, 1970, after refusing in open court -to ‘return to-the Grand Jury and answer proper and lawful interrogatories propounded to him. The aueae was a to 30 days in the Civil Jail and to pay a ine of $20 ‘The said order was affirmed by the Appellate Division, > Second Department, on June 15, 1970. -The Court of Appeals of the State of New York denied leave, to appeal to that Court on July 6, 19700 The said Court also denied a stay of proceedings pe nding an: appli- cation for certiorari to this Court. | J ~The petitioner was indicted for criminal. contempt. He _ was charged with violation of Section 215.50; subdivision 4 of fhe Penal’ Law of the State of New Y ork on June 11,1970. . An application for a further stay of ‘thie’ commitment order was made to the Hon. John M. Harlan, an Associate “Tustice of this Court, on July 29, 1970, A stay was granted Vending the filing of papers by the petitioner by August 26, 1970. \ -. ARGUMENT POINT. It w was not a en of due process of law and peti- tioner’s Fifth Amendment: privilege to punish him for ~ contempt.in refusing to answer before a Kings County Grand Jury some of the same quéstions which he had already refused to answer before a Nassau County Grand Jury and for which he had already been pun- ished -by a jail sentence by reason of such refusal. The petloner contends that the investig rations in ices County and Nassau County: are basically the same inv estiga- tion. This contention is not correct. The investigation in Nassau County deals with the disay earance of Frank Mari and Michael Adamo. .The investigation in Kings’ County by the Grand Jury is Hig takeover of a Crime Syndicate in the County of Kings formerly headed by.Joseph Bonanno and multiple homicides and assaults in the County of Wings that led to the takeover of this Crime Syndicate. Frayk “Mari based upon information suppliedto the District At- torney of Kings County was’a leading contender: to succ cod Joseph Bonannd. As one can see the investigations are not one and the same, but overlap in one small area. At is the duty “of the District. Attorney of Ikings County and the Grand Jury to determine who the perpetrators of these murders and gssé aults in Kings County are, and it is believed that the petitioner could further aid the Grand Jury investi- ° gation. Through information supplied to the Kings County Disty ict Attorney by reliable police sources Rastelli’s name Was given-to us along with certain.information stating that the petitioner may be able to furnish testimony concerning the perpetrators, of these crimes in the County of Kings. rae ‘ - rs) oe ie I 147, allows the District Attorney to indiét the witness for con- tempt under the Penal Law of ' New York, anil/ot’ initiate proc ceedings under-the Jadicerty ‘y Law of New York to hold. the witness in contempt. This case allows the District At- torney to use both methods if he so desires. See also, Matter of Wshkowjl> v. Helfand 15 N Y¥ 2d 715. “Phe petitioner “claims that' fis rights under the Fifth Amendment of the United. States Constitution are being violated since he was indicted under the Penal Law of the State of New York ‘Section 215.50, subdivision 4, and. adjudicated. in contempt -under the Judiciary Law iG the State of New York, Section 750. This isnot so. Thé-petitioner was indicted: for not answering questions under Section 215.50 of the Penal Law. of the State of New York, and the petitioner was: held in contempt under Section 750 of the Judiciary Law ‘of the. -State of New York for disobeying the lawful mandate of Justice Helfand who ordered him back to the Grand Jury to answer the questions propounded to him. The petitioner has aeons two separate acts, one is refusing to obey the. layful mandate of the Court so Mr., Justice ‘Helfand held ‘ ~ him in contempt under the Judiciary Law: of the State of : _ ° New York. The second act was the petitioner’s refusal to \ é “Ss answer questions before a Grand Jury> The petitioner was indicted for refusing to 6 the questions jyropounded 7 , ~ tohim. plead lea has.committed two separate acts he is not plaged in.a position of twice being in jeopardy _ for.the same crime. “His refusal to obey the Courts direc- ¢ tion, aad his ‘refusal to- auswer questions are mdependent acts of each other and do not give rise to double jeopardy. The petitioner has not indicated that he -wishes ‘to purge himself; therefore, he has: vo standing to-raise the issue that he would in effect be pleading guilty: to an indictment. : ——At_persent there i is-no issue to be litigated since the peti- . -—— tioner js not in a position to possibly do-harm to hjniselt ee ] legally. | ~ ie 7 : The immunity statute in New York Section 619-¢ of the Code of Criminal Procedure is more than.co- extensive v ith” the pe titioner’s privilege against. self- hicrimin: ition. This a " Hf eo receives transactioiial immunity—Menna v: Gold, 95 N ¥' 2d ae £1969). ba Ss P g \ A { Ps Z bi . e bring into the grand jury room the. expeti- ence, know edge and viewpoint of -all sections of the. community. They, hiife no axes to grind and are not charged per rsonally with the administration of the law. No-one. of them as a prosecuting attorney or law-enforcement oflicer ferreting out crime. It would be very dificult Yor otiicers of the state seriously to abuse or deceive a witness in the presence of the grand jury. Simiday ‘lygthe presetice of the jurors '. offers a substantial’ ic, See against the officers’ misrepresentation, unintentional or otherwise, of the _ Witness’ statements and. conduct before the grand jury The witness -can call on the grand jurors if — need be for ‘their ‘yormally unbjased testimony as to what occurred befor e them.’ + In re Groban, supra at odT, | ‘ ~ It would Zoom that the wisdom of these mies 5 is still valid,” because if counsel w ere permitted 1 in the: Grand Jury room itself, constant objections to questions oi! the gr ound - of relevancy, form or other privilege and,constant requests for rulings from the Court sitting would unduly ‘lengthen — the Grand Jury’s proceedings. “There could be a serious roadblock to legitimate inquiry implanted by stalling g jor delaying tacties and. since a Grand Jury never ultimately: deterniines iimoe ence or guilt and the sufficiency “of its in- dietments are usui ally open to judicial scrutiny anyway, no, harm 3} is inherent in adher arg to the asics rules, The ‘seerecy of the Grand Jury’s proceedings ‘could be | ~ seriously impaired because oftentimes the same attorney * represents more than one witness during a particular in- “—— 10 vestigation. The proceedings would essentially be changed in’ character from proceedings basically investigatory in nature to.an adversary situation. ‘This would pervert. the © ' historical purpose of the G rand Jury as a finder of fact and turnits proceedings into a pre-trial hearing. That sentiment was expressed in Stallings v.. State, 154 Conn.” 272 (1966), where it was thought that alleging counsel into the room — _ would. turn.the @ rand Jury’s i earns into nothing more than a ‘preliminary trial and iegangers were forcefully ne and clearly noted by Chief Jilgo Fee in United States’ Y. oy Smythe, 104 F. Supp. 283, 290-291 (N.D.'Cal. 1952) and by District Judge. Kirkpatrick 1 in In re Grand Jury Proceed- Veo: Supp. 283, seit Pa. 1933). : _,' Petitioner.argues that the rationale. of reeent anbenie of. this Court in’ Hamilton ¥. Alabama, 368 US. 52 (1961) ; Miranda v. Arizona, supra; U nited States v. Wade, 388 US 2a8 (1967) and - Coleman’ y. Alabama, . us ; 38 U.S.LW. 4534 (Decided June 22, 1970) required the exten- -sion of the right to counsel to the Grand Jury Room. | “) youn sis of those authorities reve als that their holdings a do not affect the long standing practice of excluding the .attorney from,the room itself. All of the Courts that haye ‘considered the problem have concluded: that because the Grand Jury does. not involve a situation where oppressive custodial interr ogation in a police dominated: .atmosphere is present, the right to counsel] should: not be further extended ” ‘to that situation. United States v. DiMichele, 375 F. 2d 959 (8rd Cir.’ 1967) ; United States v. Goldenberg, 276 F. Supp. 898, "900 (S.D.N.Y. 1967) ;| United States v. “Wolfson, 282 "F. Supp. 772 (8.D.N.Y. 1967); State v. Nelson, 202 So. 2d 232 (Fla. 1968). 11 , y as ° ‘Judge Tenney pointed out i in Uv ee spies v. : Goldenberg, i supra at 900 that: pie, BEN Neamt 4 oe : F f f ‘ - EvuGeNE Goup ts ‘District Attorney Kings County -~ ‘4 ¢'HaRLEs J. HYNES Davip H. Karz STranLEY_M. MEYER - - : : Assistant District Attorneys of Counsel ; : : oe . : wey r --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0271%3A3. Public record. Not legal advice.