Petition for Writ of Certiorari — Zumbo v. United States

e | @ | Y 1 3 Suprerse fu ne

No.

et. € 3

WF 2 3 1992

IN THE

QFAGE OF IKE Clinan

Supreme Court of the United tates

October Term, 1991

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant,

JOSEPH V. ZUMBO,

Witness-Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT AND FOR A STAY

PURSUANT TO TITLE 28 U.S.C. SECTION 2101(f)

Petition for Writ of Certiorari and for a Stay

Pursuant to Title 28 U.S.C. Section 2101(f)

JONATHAN P. HARVEY, Esa.

Of Counsel

Federal Bar Roll Number 101933

HARVEY AND

HARVEY, HARVEY & MUMFORD

Attorneys for Witness-Petitioner

29 Elk Street

Albany, NY 12207

(518) 463-4491

Dated: April 21, 1992

THE REPORTER COMPANY, INC.—Walton, NY 13856—800-252-7181

Syracuse Office, University Building, Syracuse, NY 13202—315-426-1235

NYC Office—30 Vesey St., New York, NY 10007—212-732-6978—800-800-4264

(10826 _{ €4_1490__ 1009\

Questions Presented

Whether the appeal of an order directing a witness to testify

pursuant to Title 18 U.S.C. Sections 6002 and 6003 is moot if

the witness testifies prior to the appeal being heard in order to

purge himself of a contempt order and avoid incarceration

where the Witness-Appellant’s motion for a stay of the Trial

Court proceedings was denied by the Trial Court, the Court of

Appeals and the Supreme Court and where the Witness has

been subpoenaed in another trial involving the same facts and

testimony.

Whether an order compelling an attorney-witness’ testi-

mony under a grant of immunity under Title 18 U.S.C. Sec-

tions 6002 and 6003 is coextensive with his right to silence

under the Fifth and Fourteenth Amendments to the Constitu-

tion of the United States, Spevack v. Klein, 385 U.S. 511

(1967), and its progeny, or violates the attorney-witness’ Con-

stitutional right to silence.

Should this Court grant a stay pending its decision on

certiorari review pursuant to Title 28 U.S.C. Section 2101(f)?

il.

Table of Contents.

Page

Questions Presented ............................. i

Table of Authorities ............................. iV

a MR eh ma at 2

PO 63.5 005.44 2

Constitutional and Statutory Provisions Involved ...... 2

Statement of the Case............................ 7

REASONS FOR GRANTING THE WRIT:

I. The questions presented are not moot............. 10

I. Under existing New York law, a grant of immunity

pursuant to Title 18 U.S.C. Sections 6002 and

6003 is not coextensive with an attorney-witness’

right to silence under the Fifth and Fourteenth

Amendments to the United States Constitution . . 15

III. This court should grant a Stay pursuant to Title 28

U.S.C. Section 2101(f) of the criminal proceeding

in United States v. James J. Coyne, Jr. in the

United States District Court for the Northern Dis-

trict of New York ......................... 20

COMCIIRION so. vad 5 bea 22

lll.

Page

Appendix.

United States Court of Appeals for the Second Circuit

Order Dismissing Appeal dated January 24,1992 Al

United States District Court for the Northern District of

New York Memorandum Decision and Order

dated December 6, 1991 .................... A4

United States Court of Appeals for the Second Circuit

Order Denying Motion for a Stay and a Protective

Order dated December 9, 1991............... A7

United States District Court for the Northern District of

New York Transcript Containing Oral Contempt

Order dated December 9, 199i............... A8&

United States Court of Appeals for the Second Circuit

Order Granting Expedited Appeal and Denying

Stay dated December 10, 1991............... Al2

Supreme Court of the United States Order Denying Stay

ee Be Al6

United States District Court for the Northern District of

New York Order Granting Immunity Pursuant to

Title 18 U.S.C. Section 6002 and Sealing Order

Gapec Movemmper 27, IDF]... wc cece cee Al8

United States District Court for the Northern District of

New York Motion for Protective Order dated

nn ed cus bu wuweedadedodn A21

iv.

Page

United States District Court for the Northern District of

New York Notice of Appeal dated December 9,

scsince ETT T ROE OT Ee re en A23

United States Court of Appeals for the Second Circuit

Notice of Motion to Dismiss Appeal dated

December 13, 1991........................ A25

United States District Court for the Northern District of

New York Subpoena in a Criminal Case dated

ON Wy CUES Ci oes «Nace waxed ieee: A28

TABLE OF AUTHORITIES

CASES:

Anonymous Attorneys v. Bar Association of Erie

County, 41 N.Y.2d 506 Seer Ske oi, 17, 18

Cohen v. Hurley, 366 U.S. 117 GEM ons fae cans 16

Griffin v. California, 380 U.S. 609 1, 18, 19

Indiana School Commissioners v. Jacobs, 420 U.S. 128

RRM eS hee duit ee keane ae 10

In re Epstein, 37 A.D.2d 333, 325 N.Y.S.2d 657, cert.

denied, 405 U.S. 1046 (ist Dep’t, 1974)....... 17

In re Klebanoff, 21 N.Y.2d 920 eo we 17

V.

Page

In re Selig, 32 A.D.2d 213, 302 N.Y.S.2d 94 (1st Dep’t,

FE ht dvis binds eee A ee Ore 17

Kastigar v. United States, 406 U.S. 411, reh. den., 408

Bhs Pe COU 5 65 0h aa ee ee 17, 20

Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24,

aff'd, 61 N.Y.2d 918 (2d Dep’t, 1983) ........ 19

Malloy v. Hogan, 378 U.S. 1 (1964)........... 15, 18, 19

Mapp v. Ohio, 367 U.S. 643 (1961) ................ 18

Marshall v. Whittaker Corp., 610 F.2d 1141 (3d Cir.

TPESE tn cbardinnedcagawehn eae ere 11

Matter of Ungar, 27 A.D.2d 925, 282 N.Y.S.2d 158, lv. to

app. denied, 20 N.Y.2d 642, cert. denied, 389

U.S. (007 (iat Daw, GRRL) . «5 cas casnveases 17

Moore v. Ogilvie, 393 U.S. 403 (1972).............. 1]

Murphy v. Hunt, 455 U.S. 478 (1982)............... 11

Nebraska Press Association v. Stuart, 427 U.S. 539

(EPP o scedecciveien sence ea eran eee 11, 14

O’Brien v. O’Brien, 65 N.Y.2d 576 (1985)........... 19

Roe v. Wade, 400 U5. F195 (97s) ss ask cesses 11

Soena v. lowe, 419 US. 953 (197s). eo Giese a 10, 11

Southern Pacific Terminal Company v. I.C.C., 219 U.S.

Fe CE i ee eae ee eee 1]

Vi.

Page

Spevack v. Klein, 385 U.S. 511 (1967)........... passim

United States v. Frumento, 852 F.2d 534 (3d Cir.

PPT Fev cee iniaccianntaeee ee 12, 14

United States v. Munsingwear, Inc., 340 U.S. 36

CAPER: 6:3 50 000 tkb ene ee %6 Rade E e 10

Weinstein v. Bradford, 423 U.S. 147 to >) ees 1]

STATUTES:

Title 18 U.S.C. 6002... 0.000.000.0000. 0000000... passim

Title 18 U.S.C. 6003.......00000000000..000022.. passim

Title 28 U.S.C. 1826............0.......... a & i213

Title 28 U.S.C. 2101......0.000000..0.......... passim

UNITED STATES CONSTITUTION:

Article III, Section 2 of the United States

Constitution............................. 2, 10

Fifth Amendment to the United States Constitution. . passim

Fourteenth Amendment to the United States

Comstitution. 0... 0... cece eee cccsces passim

OTHER AUTHORITIES:

Hazard and Beard A Lawyer’s Privilege Against Self-

Incrimination in Professional Disciplinary Pro-

ceedings, 96 Yale L.J. 1060 (1987)......... 18, 19

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991.

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant,

JOSEPH V. ZUMBO,

Witness-Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT AND FOR A

STAY PURSUANT TO TITLE 28 U.S.C. SECTION 2101(f)

Petition for Writ of Certiorari and for a Stay Pursuant

to Title 28 U.S.C. Section 2101(f)

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

JOSEPH V. ZUMBO, Petitioner herein, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit entered in this matter

2

on January 24, 1992 and issue a stay pursuant to Title 28

U.S.C. Section 2101(f) pending the outcome on certiorari

review.

Opinions Below

The order of the Court of Appeals, whose judgment is

herein sought to be reviewed, is unreported and a copy is

attached in the Appendix at page “‘A-]”. The United States

District Court for the Northern District of New York has

rendered an opinion in this matter, a copy of which is attached

in the Appendix at page “‘A-4”. This opinion is not reported.

Jurisdiction

The order of the Court of Appeals was entered January 24,

1992. The jurisdiction of this Court is invoked pursuant to

Title 28 U.S.C. Section 1254(1).

Constitutional and Statutory Provisions Involved

This case involves Article III, Section 2 of the United States

Constitution, the Fifth Amendment and the first section of the

Fourteenth Amendment to the Constitution of the United

States, Title 18, Sections 6002 and 6003, and Title 28, Sections

1826(a) and 2101(f) of the United States Code, which provide

as follows:

ARTICLE III

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to al!

Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and maritime

3

Surisdiction;—to Controversies to which the United

States shall be a Party;—to Controversies between two

or more States;—between a State and Citizens of

another State;—between citizens of different States;—

between Citizens of the same State claiming Lands

under Grants of different States, and between a State,

or the Citizens thereof, and foreign States, Citizens or

Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall

be Party, the supreme Court shall have original juris-

diction. In all the other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both

as to Law and Fact, with such Exceptions, and under

such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in

the State where the said Crimes shall have been com-

mitted; but when not committed within any State, the

Trial shall be at such Place or Places as the Congress

may by Law have directed.

ARTICLE [V]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

4

ARTICLE XIV

Section |. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberiy, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Section 6002. Immunity generally

Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or pro-

vide other information in a proceeding before or ancill-

ary 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 commu-

nicates 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

ee

5

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.

Section 6003. Court and grand jury proceedings

(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 proceedings 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 effec-

tive 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 Attor-

ney 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

(2) such individual has refused or is likely to refuse

to testify or provide other information on the basis of

his privilege against self-incrimination.

6

Section 1826. Recalcitrant witnesses

(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 informa-

tion, 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—

(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. .

Section 2101. Supreme Court; time for appeal or cer-

tiorari; docketing; stay

(f) In any case in which the final judgment or

decree of any court is subject to review by the Supreme

Court on writ of certiorari, the execution and

enforcement of such judgment or decree may be stayed

for a reasonable time to enable the party aggrieved to

obtain a writ of certiorari from the Supreme Court.

The stay may be granted by a judge of the court

rendering the judgment or decree or by a justice of the

Supreme Court, and may be conditioned on the giving

of security, approved by such judge or justice, that if

the aggrieved party fails to make application for such

7

writ within the period allotted therefor, ur fails to

obtain an order granting his application, or fails to

make his plea good in the Supreme Court, he shall

answer for all damages and costs which the other party

may sustain by reason of the stay.

Statement of the Case

The instant action is a Federal criminal case brought, inter

alia, pursuant to Title 18 U.S.C. Sections 371 and 666, in

which the Petitioner was called as a witness and compelled to

testify over his assertion of his right to silence pursuant to the

Fifth and Fourteenth Amendments to the Constitution of the

United States. He has again been subpoenaed to testify at trial

on May 11, 1992.

Joseph V. Zumbo, the Petitioner, is an attorney in the State

of New York. The Government subpoenaed Mr. Zumbo to

testify in the instant cause of action involving charges against

the Defendant, John Gregory Crozier. The indictment returned

against the Defendant alleges a conspiracy to bribe and the

transfer of a bribe to the former Albany County Executive

James Coyne. The Petitioner was named as an unindicted co-

conspirator of the Defendant.

During the investigation of the Defendant, Mr. Zumbo testi-

fied before the Grand Jury on several occasions pursuant to an

immunity agreement with the Government. Prior to the com-

mencement of the trial in the above-captioned matter, the

Government declared the immunity agreement in breach and

indicted the Petitioner on two counts of perjury and one count

of giving false information in connection with that separate

proceeding.

Although this Court held in Spevack v. Klein, 385 U.S. 511

(1967), that the Fifth Amendment's right to silence applies in

8

State disciplinary proceedings involving an attorney’s license

to practice law, it is well established in New York that com-

pelled, immunized testimony is admissible in such proceed-

ings. Thus, at trial, Mr. Zumbo chose to invoke his right to

silence embodied in the Fifth and the Fourteenth Amendments

to the United States Constitution, as he would be entitled to do

at a disciplinary proceeding involving his license to practice

law. Pursuant to a pretrial order dated and sealed November

27, 1991, and unsealed at trial on December 9, 1991, the

District Court granted Joseph Zumbo immunity for his testi-

mony under Title 18 U.S.C. Sections 6002 and 6003. (A copy

of the order is attached in the Appendix at page ‘‘A-18”’.)

Prior to being called to testify at trial, and in anticipation of

being granted immunity, Petitioner made a motion seeking a

protective order prohibiting his compelled testimony or, in the

alternative, for an order denying the Government’s application

for an order compelling his testimony under Title 18. (A copy

of the motion papers are attached in the Appendix at page

‘‘A-21"’.) The basis of this motion was that since immunized

testimony is admissible in State disciplinary proceedings, any

immunity conferred by the District Court would not be coex-

tensive with Mr. Zumbo’s Fifth and Fourteenth Amendment

rights.

\

' The Hon. Con. G. Cholakis, Judge of the United States

District Court for the Northern District of New York, denied

the motion, finding the immunity to be coextensive. (A copy

of the Memorandum Decision and Order dated December 6,

1991 is attached in the Appendix at page “‘A-4”.) On appeal,

the Court of Appeals for the Second Circuit denied Peti-

tioner’s motions for a stay and protective order, and ruled that

the validity of the District Court’s order may be tested on

appeal from adjudication of contempt. (A copy of the Order of

the Court of Appeals is attached in the Appendix at page

“A-7".)

9

Thereafter, when the above-described order granting immu-

nity was unsealed at trial on December 9, 1991, the Petitioner

asserted his right to silence and refused to testify. The District

Court then held Mr. Zumbo in contempt and ordered incarcer-

ation, staying enforcement of the contempt order for two days

until December 11, 1991, to allow Petitioner time to appeal or

purge himself of the contempt. (The December 9, 1991 order

was made orally by the Court. A copy of the relevant portion

of the transcript containing the order is attached in the Appen-

dix at page “*A-8’’.)

On December 9, 1991, the Petitioner filed a notice of appeal

trom the orders of District Court Judge Con. G. Cholakis

dated November 27, 1991 and December 9, 1991] with the

Clerk of the Northern District of New York. (A copy of the

December 9, 1991 Notice of Appeal is attached in the Appen-

dix at page “‘A-23”’.) By an order dated December 10, 1991,

the Court of Appeals for the Second Circuit granted Mr.

Zumbo’s motion for an expedited appeal, but refused to stay

the lower court proceedings pending the outcome of the

appeal. (A copy of this order is attached in the Appendix at

page “‘A-12’’.) The Petitioner then sought a stay of the District

Court proceedings from the Supreme Court. That application

was also denied. (A copy of the Supreme Court’s Order is

attached in the Appendix at page ““A-16”’.) The Second Circuit

scheduled argument in the appeal for the week of January 13,

1992.

Meanwhile, on December 11, 1991, the Petitioner resumed

the witness stand. Faced with the ‘“‘choice”’ of jail or abandon-

ment of his Fifth and Fourteenth Amendment privileges, and

absent a stay from the Second Circuit or from this Court, the

Petitioner was compelled to testify.

10

The trial of John Gregory Crozier concluded on December

20, 1991. On December 13, 1991, after Petitioner had com-

pleted his testimony, the Government made a motion to the

Second Circuit to dismiss Petitioner’s appeal on the ground

that it was moot. (A copy of the motion is attached in the

Appendix at page “‘A-25’’.) The Second Circuit heard oral

argument in this case on January 16, 1992. On January 24,

1992, the Court granted the Government’s motion and dis-

mussed the appeal as moot. (A copy of the Court of Appeals’

Order is attached in the Appendix at page “‘A-1”’.)

On March 19, 1992, the Government subpoenaed the Peti-

tioner to testify in the upcoming trial of James Coyne regard-

ing exactly the same transactions proved in the Crozier trial.

(A copy of the subpoena is attached in the Appendix at page

**A-28”’.)

REASONS FOR GRANTING THE WRIT

I.

The questions presented are not moot

It is well established that the jurisdiction of the Supreme

Court under Article III, Section Two, of the United States

Constitution extends only to actual cases and controversies in

existence during appellate or certiorari review. United States v

Munsingwear, Inc., 340 U.S. 36 (1950); Indiana School Com-

missioners v. Jacobs, 420 U.S. 128 (1975); Sosna v. Iowa, 419

U.S. 393 (1975).

One recognized and relevant example of the application of

the mootness guidelines occurs with respect to judgments of

civil contempt. The judgment becomes moot once the con-

11

tempt has been purged because such compliance with the

Court’s order eliminates any case or controversy. Marshall v.

Whittaker Corp., 610 F.2d 1141 (3d Cir. 1979).

Several exceptions to the mootness doctrine have evolved,

the most venerable of which is where an otherwise moot issue

may be reviewed if it is ‘‘capable of repetition, yet evading

review.” Southern Pacific Terminal Company v. I.C.C., 219

U.S. 393 (1911); Moore v. Ogilvie, 393 U.S. 403 (1972); Roe

v. Wade, 410 U.S. 113 (1973); Sosna v. Iowa, 419 U.S. 393

(1975). The Supreme Court has established a two-part test for

this exception to the mootness doctrine. First, the Petitioner

must show that, [T]he challenged action was in its duration

too short to be fully litigated prior to its assertion or expira-

tion”’ and second, “there was a reasonable expectation that the

same complaining party would be subjected to the same action

again.” Murphy v. Hunt, 455 U.S. 478, 482. (1982), citing,

Weinstein v. Bradford, 423 U.S. 147 (1975); Sosna v. Iowa,

419 US. 393 (1975).

Under the first prong of this test, a petitioner must demon-

strate that due to the nature of the action involved, the internal

clock of the subject action will necessarily stop prior to the

perfection of an appeal to this Court. Thus, the Supreme Court

has recognized specific “internal clocks” which meet this test,

such as the normal two hundred and sixty-six day period of

human gestation and short-term residency requirements. Roe,

supra; Sosna, supra (respectively) Another such exception is

where an appeal is taken from a “short-lived’’ order. Nebraska

Press Association v. Stuart, 427 U.S. 539, 547 (1976).

The Nebraska Press Association case involved a ‘“‘gag”’

order restraining the news media from reporting or printing

prejudicial facts concerning the accused in a pending murder

trial prior to impaneling the jury. Thus, the order’s internal

clock stopped running once the jury was selected. In the

12

decision granting certiorari, this Court stated, “Yet if we

decline to address the issue in this case on the grounds of

mootness, the dispute will evade review, or at least considered

plenary review in this Court, since these orders are by nature

short-lived.”” /d.

The civil contempt order in the case at bar falls squarely

within this category. A civil contempt order pursuant to Title

28 U.S.C. Section 1826 cannot exceed the life of the Court

proceeding or the term of the Grand Jury. In the case at bar, the

trial lasted less than one month.

The second prong of this »*st is to determine whether the

controversy in question is capable of repetition. Although the

underlying dispute in the Nebraska Press Association case had

ended by the time it was reviewed by the Supreme Court, the

Court found two bases on which it might be capable of

repetition. First, this Court found that reversal by the Nebraska

Supreme Court may necessitate a new trial in which an identi-

cal order may again be issued; second, since the State was a

party, the decisions in this case authorize its prosecutors to

seek the same type of order in any appropriate future case.

Nebraska Press Association, supra at 546-47.

The United States Court of Appeals for the Third Circuit

held, under analogous facts, that an appeal from a district

court order holding a witness in contempt for refusing to

testify was not moot because the witness faced being subpoe-

naed to give the same or similar testimony in a subsequent

criminal proceeding. United States v. Frumento, 852 F.2d 534

(3d Cir. 1977). In Frumento, a defendant, Vito Pisciotta, who

had already been tried and convicted, but not yet sentenced,

was subpoenaed to testify at the trial of his co-defendants.

Upon being called to the stand, Pisciotta asserted his Fifth

Amendment right and refused to testify. Pisciotta was then

given immunity pursuant to Title 18 U.S.C. Section 6002.

13

Pisciotta again refused to testify and was held in contempt of

Court pursuant to Title 18 U.S.C. Section 1826. The District

Court ordered him to be confined until the trial terminated or

he purged himself of the contempt. /d. at 535-36.

Pisciotta immediately sought a stay of the contempt order.

The stay was denied. He then filed a notice of appeal and

sought a stay pending the outcome on appeal. Leave to appeal

was granted, but the stay was denied. By the time the direct

appeal was before the Court of Appeals, the case involving

Pisciotta’s co-defendants had ended. On appeal, the Govern-

ment contended that the appeal was moot since the contempt

order had terminated at the end of the trial and the petitioner

had been released from custody. /d.

The Court found that this controversy met the “evading

review”’ portion of the test since it was a short-lived order. It

then discussed the second part of the test with which we are

now concerned. In finding the dispute in Frumento capable of

repetition, the Court stated:

[W]e perceive no difference between Pisciotta’s expo-

sure to future grand jury or court proceedings and the

circumstances foreseen by the Supreme Court in

Nebraska Press in the event a new trial was ordered

and a new gag order imposed. Indeed, we need not

speculate with respect to Pisciotta’s future grand jury

involvements, for the government had already subpoe-

naed Pisciotta once to give grand jury testimony, and

has indicated an intention to call him again. Further we

are mindful that appeals may be taken by Pisciotta’s

co-defendants, which may result in new trial proceed-

ings at which Pisciotta’s testimony will be required.

Hence the circumstances giving rise to Pisciotta’s con-

finement are at least as ‘“‘capable of repetition” as

those circumstances which have satisfied the Supreme

14

Court’s mootness requirements in cases involving

other interests.

United States v. Frumento, 552 F.2d at 540 (1970).

In the instant case, Joseph V. Zumbo was subpoenaed to

testify in a trial in which he had been named as an unindicted

co-conspirator. Here, Petitioner also vigorously pursued all

avenues of appellate review, including filing a motion and an

appeal from the ensuing order prior to being called to testify

and then appealing the relevant Court orders granting immu-

nity and finding Petitioner in contempt on the day they were

issued. Although Petitioner was granted leave to appeal, nei-

ther the Court of Appeals nor this Court would grant a stay of

proceedings. Thus, Petitioner testified to purge himself of

contempt and avoid incarceration.

Further, pursuant to a subpoena dated March 16, 1992.

Joseph Zumbo has been called to testify in the trial of James

Coyne concerning the same facts and transactions as those

testified to in the instant case, removing any speculation as to

whether the dispute will repeat itself. See, Frumento, supra.

The further possibility of repetition exists since the December

20, 1991 guilty verdict against the Defendant John Gregory

Crozier has been appealed and a new trial is possible. See,

Nebraska Press Association, supra; Frumento, supra.

The facts herein clearly present this Court with a case or

controversy capable of repetition, yet evading review. Ignor-

ing this principle, however, the Second Circuit Court of

Appeals simply dismissed the case and Petitioner’s Constitu-

tional rights as moot without opinion. The Supreme Court now

has the opportunity to correct the Court of Appeals’ error and

rectify the injustice presented in this Petition.

15

Il.

Under existing New York law, a grant of immunity pur-

suant to Title 18 U.S.C. Sections 6002 and 6003 is not

coextensive with an attorney-witness’ right to silence

under the Fifth and Fourteenth Amendments to the United

States Constitution

The Fifth Amendment to the Federal Constitution ‘‘guaran-

tees against Federal infringement—the right of a person to

remain silent unless he chooses to speak in the unfettered

exercise of his own will, and to suffer no penalty . . . for such

silence.” Malloy v. Hogan, 378 U.S. 1 (1964). The absorption

of the Fifth Anendment into the Fourteenth Amendment to the

Federal Constitution makes this right available in State actions

as well. Id.

In this context ‘“‘penalty” is not restricted to fine or

imprisonment. It means . . . the imposition of any

sanction which makes assertion of the Fifth Amend-

ment privilege “‘costly.” (cites omitted) . . . The threat

of disbarment and the loss of professional standing,

professional reputation, and of livelihood are powerful

forms of compulsion to make a lawyer relinquish the

privilege. That threat is indeed as powerful an instru-

ment of compulsion as “the use of legal process to

force from the lips of the accused individual the evi-

dence necessary to convict him. . .”” United States v.

White, 322 U.S. 694, 698.

Spevack v. Klein, 385 U.S. 511 (1967).

Thus, this Court held in Spevack, supra, that a lawyer’s

Fifth Amendment right against self-incrimination applies

under the Fourteenth Amendment to State disciplinary pro-

ceedings. In Spevack, a case appealed to the Supreme Court

16

trom the New York State Court of Appeals, an attorney was

disbarred for asserting his right against self-incrimination.

The Court of Appeals upheld the disbarment on the grounds of

Cohen v. Hurley, 366 U.S. 117 (1961). Cohen held that the

Fifth Amendment did not apply to the States under the Four-

teenth Amendment, nor did it apply in these types of quasi-

judicial proceedings. /d. In rendering the decision in Spevack,

this Court expressly overruled Cohen saying:

And so the question emerges whether the principle of

Malloy v. Hogan is inapplicable because petitioner is a

member of the Bar. We conclude that Cohen v. Hurley

should be overruled, that the Self-Incrimination Clause

of the Fifth Amendment has been absorbed in the

Fourteenth, that it extends its protection to lawyers as

well as to other individuals, and that it should not be

watered down by imposing the dishonor of disbarment

and the deprivation of a livelihood as a price for

asserting it.

Spevack, at 514.

Pursuant to Title 18 U.S.C. Section 6003(a), a District Court

is required to issue an order compelling an individual to testify

in Court upon the request of the United States Attorney for

such District. Once such an order is issued, Title 18 U.S.C.

Section 6002 clothes the witness with use and derivative use

immunity to prevent such testimony from being used against

him in any subsequent “criminal case.” Title 18 U.S.C. Sec-

tions 6002 and 6003(a). This Court has ruled that in order to

compel a witness to testify over an assertion of the individual’s

right against self-incrimination, the immunity conferred must

be at least as broad as the Fifth Amendment right. Thus, the

17

Court interpreted Section 6002 use immunity to be coexten-

sive with the scope of the privilege against self-incrimination.

Kastigar v. United States, 406 U.S. 411, reh. den., 408 U.S.

931 (1972).

Subsequent to the Supreme Court’s ruling in Spevack,

supra, the New York State Court of Appeals and Appellate

Divisions decided several cases clearly authorizing the recep-

tion into evidence, during a disciplinary proceeding against an

attorney, of the attorney’s compelled, immunized testimony

from a prior proceeding. In all these cases, the witness gave up

the privilege under threat of contempt, as did Appellant herein.

In re Klebanoff, 21 N.Y.2d 920 (1968); Anonymous Attorneys

v. Bar Association of Erie County, 41 N.Y.2d 506 (1977);

Matter of Ungar, 27 A.D.2d 925, 282 N.Y.S.2d 158, leave to

appeal denied, 20 N.Y.2d 642, cert. denied, 389 U.S. 1007 (ist

Dep't, 1967); In re Selig, 32 A.D.2d 213, 302 N.Y.S.2d 94 (Ist

Dep't, 1969); In re Epstein, 37 A.D.2d 333, 325 N.Y.S.2d 657,

cert. denied, 405 U.S. 1046 (ist Dep’t, 1974). It is, however,

the simple fact that this process will repeat itself at the Coyne

trial that makes this appeal timely and not moot.

Since all of these cases involved situations where attorneys

had already testified pursuant to a grant of immunity, none

addressed the issue of whether a witness can be compelled, as

will again occur here, to provide testimony which might

expose him to subsequent disciplinary proceedings. In fact, in

Ungar, Respondent expressly abandoned his reliance on his

Fifth Amendment privilege against self-incrimination. The

above-cited cases make it perfectly clear, however, that once

the testimony is given, regardless of the extent of the immu-

nity granted in the original proceeding, the testimony can be

used in subsequent disciplinary proceedings as the rope that

hangs its maker rendering any grant of immunity non-coexten-

sive with the privilege.

18

In Anonymous Attorneys, supra, the New York State Court

of Appeals stated that the Constitutional protection afforded

by a grant of imunity extends only to the use of compelled

testimony in criminai proceedings. The Court held discipli-

nary actions to be non-criminal proceedings. The opinion

incorrectly interprets Spevack and similar Supreme Court

decisions as simply standing for the notion that compelled

testimony cannot be required in a disciplinary proceeding

without granting immunity from use in subsequent criminal

proceedings. Such immunity, the Court states, is coextensive

with the Fifth Amendment and thus allows the use of the

testimony in disciplinary proceedings.

Such an interpretation is inconsistent with Spevack and the

. cases upon which it rests, especially Malloy, supra, Mapp v.

Ohio, 367 U.S. 643 (1961), and Griffin v. California, 380 U.S.

609 (1965). In Spevack, this Court cites Griffin for the propo-

sition that “penalty” means any sanction that makes the asser-

tion of the Fifth Amendment “‘costly.”” Spevack, at 515, citing,

Griffin, supra. The Court holds disbarment to be just such a

costly sanction. Spevack, at 516. In Malloy, the Justices state

that “*. . . any forcible and compulsory extortion of a man’s

Own testimony . . . to be used as evidence . . . to forfeit his

goods, is within the condemnation of [the Fourth, Fifth and

Fourteenth Amendments] . . .”” Malloy, at 15, citing, Mapp v.

Ohio, supra.

Further, this Court ruled in Spevack that no adverse conse-

quence such as disbarment in a State disciplinary proceeding

can be imposed for invoking the Fifth Amendment privileges.

Therefore, the New York Court of Appeals’ decision in Anon-

ymous Attorneys v. Bar Association of County of Erie rests on

faulty and untenable logic, namely that disciplinary proceed-

ings can be both criminal and civil for purposes of the Fifth

and Fourteenth Amendments. As was well said by Professors

Geoffrey C. Hazard and Cameron Beard of the Yale Law

School:

19

There is an anomaly, if not a contradiction, in holding

that disciplinary proceedings are sufficiently “crimi-

nal” to preclude drawing adverse inferences from the

accused’s invocation of the privilege against self-

incrimination, while also holding that they are suffi-

ciently not “criminal” that disbarment may be

imposed despite the accused’s receipt of immunity.

96 Yale L.J. 1060, 1071 (1987).

The effect of “hybridizing” the disciplinary proceedings by

a manipulation of the nature of the proceedings from civil to

criminal to achieve a desired public policy result, i.e. policing

the profession, gives rise to a truncation and dilution of the

privilege against self-incrimination. A lawyer, or indeed any

individual engaged in an occupation the pursuit of which can

be withdrawn by state regulation, unlike any other witness or

defendant, is thus required to choose between “‘pleading the

Fifth” or relinquishing his Fifth Amendment privilege and

automatically being subject to occupational discipline or loss

of his livelihood. If the lawyer claims the privilege and is then

granted immunity, the immunity is not coextensive with the

privilege against self-incrimination since the lawyer is not

protected against the loss of his property right to practice law,

resulting from such testimony. Lawyers, purely by reason of

their profession, should not be entitled to any less protection

under the Fifth and Fourteenth Amendments than the public in

general.

The New York Court of Appeals and the Appellate Divi-

sions have held many times that a license to practice law or

another profession is a property right. See, O’Brien v. O Brien,

65 N.Y.2d 576 (1985); Litman vy. Litman, 93 A.D.2d 695, 463

N.Y.S.2d 24, aff’d, 61 N.Y.2d 918 (2d Dep’t, 1983). Yet, in the

face of the above-cited precedent, especially Spevack, Griffin,

and Malloy, the New York Courts continue to cling to their

20

narrow construction of these cases and apply them only in

criminal proceedings. This narrow construction eliminates the

protections afforded by testimonial immunity and exposes the

attorney-witness to “costly” sanctions and forfeiture of prop-

erty rights. Under this interpretation, testimonial immunity is

no longer coextensive with the Fifth Amendment and is, there-

fore, unconstitutional. Kastigar, supra.

Further, pursuant to the New York construction, the District

Court is not a competent authority to grant immunity under

Section 6003 in a State disciplinary proceeding and is thus

unable to compel the testimony of any attorney that might be

used in a subsequent disciplinary proceeding.

Absent the testimony sought to be compelled in this action,

the witness could invoke his Fifth and Fourteenth Amendment

right to silence in a disciplinary proceeding.

If the witness testifies under an order of immunity, he has

waived his Fifth Amendment and Fourteenth Amendment

privilege. By invoking his Fifth and Fourteenth Amendment

privilege, he has been held in contempt. It is not within

traditional definitions of due process and liberty that such a

choice is required.

Ill.

This Court should grant a stay pursuant to Title 28

U.S.C. Section 2101(f) of the criminal proceeding in United

States v. James J. Coyne, Jr. in the United States District

Court for the Northern District of New York

On March 19, 1992, Petitioner was served by the United

States Attorney’s Office for the Northern District of New

York with a subpoena to give testimony in the trial of the

United States v. James J. Coyne, Jr. This trial is scheduled to

21

commence on May 11, 1992 in the Northern District Court-

house in Albany, New York. The Petitioner will be called to

testify to the same facts and transactions to which he testified

at the Crozier trial during which the District Court issued the

order which precipitated the appeals presented in this Petition.

The judgments and orders of the United States District

Court for the Northern District of New York make it patently

clear that absent a stay from this Court pending its review on

certiorari of the questions herein presented, the Petitioner will

be subjected to the same revolving door treatment he received

during the instant trial and appeal process.

The December 6, 1991 judgment of the Honorable Con. G.

Cholakis holding Title 18 immunity coextensive with Peti-

tioner’s Fifth and Fourteenth Amendment rights will render

that issue res judicata. The Second Circuit will not grant leave

to appeal until the Petitioner is held in contempt. Once the

Court of Appeals grants leave to appeal, if they grant such

leave, it will not stay the lower court proceedings, nor, appar-

ently, will this Court. Thus, Petitioner will once again be

compelled to abandon his Fifth and Fourteenth Amendment

rights to avoid incarceration. Upon completing his testimony,

the Government will make and the Court of Appeals will

presumably grant a motion to dismiss on the ground of

mootness.

Thus, the Petitioner will be twice deprived of his Constitu-

tional rights without being given an appellate review on the

merits.

The Petitioner was stripped of his Constitutional rights as

an American citizen without appellate review in the Crozier

trial. The Government seeks for a second time to take advan-

tage of the testimonial revolving door created in the Crozier

trial. In order to allow Petitioner the review to which he is

22

entitled when such important and basic rights are involved,

this Court should stay the District Court proceedings pending

its review on certiorari of the issues set forth in this Petition.

Conclusion

The Petitioner respectfully requests that this Court issue a

writ of certiorari to the United States Court of Appeals for the

Second Circuit, and grant Petitioner’s request for a stay pend-

ing the outcome of this Court’s certiorari review pursuant to

Title 28 U.S.C. Section 2101(f).

Dated: April 21, 1992

Respectfully submitted,

HARVEY AND

HARVEY, HARVEY & MUMFORD

Attorneys for Witness-Petitioner

By: JONATHAN P. HARVEY

Federal Bar Roll Number 101933

29 Elk Street

Albany, NY 12207

(518) 463-449]

a

APPENDIX.

United States Court of Appeals for the Second Circuit

Order Dismissing Appeal dated January 24, 1992.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

USA

CROZIER

ZUMBO,

Witness-Appellant

91-6302

MOTION BY:

DAVID R. HOMER

Assistant U.S. Attorney

Northern District of New York

James T. Foley U.S. Courthouse

Albany, New York 12207

518-472-5522

A2

Has consent of opposing counsel:

A. been sought? X Yes

B. been obtained? X No

Has service been effected? X Yes

Is oral argument desired? X No

Requested return date: December 23, 1991

Has argument date of appeal been set:

A. by scheduling order? X Yes

B. by firm date of argument notice? X No

OPPOSING COUNSEL:

JONATHAN P. HARVEY, ESQ.

Harvey, Harvey & Mumford

29 Elk Street

Albany, New York 12207

518-463-4491

Hon. Con. G. Cholakis, United States District Judge

Dismissal of appeal on the ground it is moot.

By:

David R. Homer December 13, 199] X Plaintiff

A3

IT Is HEREBY ORDERED that the motion be and it hereby is

granted and the above entitled appeal is hereby dismissed.

ISSUED AS MANDATE. Jan. 28, 1992

A TRUE COPY

ELAINE B. GOLDSMITH, Clerk

Jan 24 1992

(illegible)

Richard J. Cardamone

Joseph M. McLaughlin

Circuit Judges

Filed Jan 24 1992

Elaine B. Goldsmith, Clerk

United States Court of Appeals

Second Circuit

A4

United States District Court for the Northern District of

New York Memorandum Decision and Order dated

December 6, 1991.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant.

91-CR-284

*

Appearances:

Frederick J. Scullin, Jr., United States Attorney, Attorneys

for Plaintiff, James T. Foley U.S. Court House, 445 Broadway,

Albany, New York 12207.

Michael C. Magguilli, Esg., 151 Madison Avenue, Albany,

New York 12201.

Raymond A. Kelly, Jr., Esq., 112 State Street, Albany, New

York 12207.

AS

Attorneys for Defendant.

Jonathan Harvey, Esq., Attorney for Joseph P. Zumbo, Sub-

poenaed Witness, 29 Elk Street, Albany, New York 12207.

Ot Counsel:

George A. Yanthis, Esq.

Thomas Spina, Esq.

Con. G. Cholakis, D.J.

Memorandum Decision and Order

Subpoenaed witness Joseph V. Zumbo’s motion for a pro-

tective order prohibiting his compelled testimony or, in the

alternative, for an order denying the Government’s application

for an order compelling his testimony, pursuant to 18 U.S.C.

§§ 6002 & 6003 is hereby denied.

Testimony immunized and compelled by order of this

Court, under §§ 6002 & 6003, cannot be used in any subse-

quent federal or state criminal prosecution. See In Re Grand

Jury Proceedings, 860 F.2d 11, 14-15 (2d Cir. 1988). Such

immunity “‘leaves the witness . . . in substantially the same

position as if the witness had claimed the Fifth Amendment

privilege.”’ Kastigar v. United States, 406 U.S. 441, 462, 92

S.Ct. 1653, 1666 (1972). Further, while Mr. Zumbo contends

that such immunity may not prevent the use of his compelled

testimony at a subsequent state court disbarment proceeding,

such immunity is constitutionally sound: the Fifth Amendment

to the Constitution, as applied to the States through the Four-

teenth Amendment, does not prevent such an outcome.

F

ne a ae

A6

In a case decided after, and in recognition of Spevack v.

Klein, 385 U.S. 511, 87 S.Ct. 625 (1967), the New York State

Court of Appeals stated that:

The Fifth Amendment relates to self incrimination on

charges of crime. Disciplinary proceedings for profes-

sional misconduct are civil in nature. . . [it] is not a

criminal case. [There is] no privilege against making

disclosure usable only in a disciplinary proceeding.

The constitutional privilege applies only in the case of

evidence which might be used . . . in a criminal case

under the language of the Fifth Amendment.

... Spevack [does not] confer[ }] upon them a constitu-

tional privilege to withhold evidence which cannot

lead to criminal prosecution and bears only upon [a]

right to continue to practice law.

Zuckerman v. Greason, 20 N.Y.2d 430, 438, 285 N.Y.S.2d 1,6

(1967), cert. denied 390 U.S. 925 (1968).

Therefore, any immunity granted to Mr. Zumbo, pursuant to

§§ 6002 & 6003 is constitutionally sound, and affords the

same protection as that of the Fifth Amendment to the

Constitution.

IT 1S SO ORDERED

CON. G. CHOLAKIS, JUDGE

United States District Court

DATED: Albany, New York

December 6, 1991

A7

United States Court of Appeals for the Second Circuit

Order Denying Motion for a Stay and a Protective

Order dated December 9, 1991.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant.

91-6302

e

12/9/91}

1. Faxed papers may be filed.

2. Motions for stay and protective order are denied. Validity

of District Court’s order may be tested on appeal from adjudi-

cation of contempt.

Jon O. Newman

te i om §

Filed Dec 9 1991

Elaine B. Goldsmith, Clerk

United States Court of Appeals

Second Circuit

A8

United States District Court for the Northern District of

New York Transcript containing oral Contempt Order

dated December 9, 1991.

(21) tried to introduce somebody’s grand Jury testimony with-

Oul me cross-examining it.

The Court: I think Mr. Harvey was talking about the Brown

case of long, long ago.

Mr. Harvey: I’m old.

The Court: Not that old, Mr. Harvey.

Mr. Zumbo, the Government has asked for and received a

grant of use immunity under Section 6002 and 6003 of Title 18

U.S. Code. In this Court’s judgment, this use immunity is

coextensive with the Fifth Amendment privilege you just

asserted. I, therefore, say to you, sir, that the Fifth Amendment

privilege is not available to you and you must testify. Will you

answer the question?

The Witness: With all due respect, your Honor, I under-

stand what the Court is saying and I will, pursuant to a

direction by my attorney and on my own, assert my right to

remain silent pursuant to the Fifth and Fourteenth Amend-

ments of the Constitution of the United States, the Supreme

Court cases pertaining thereto for all matters, civil and

criminal.

The Court: Will you do so and continue to do so, Mr.

Zumbo, with the knowledge that I am about to hold you in

contempt of court and about to place you in custody?

The Witness: Yes, sir.

The Court: Anything else, gentlemen?

Mr. Yanthis: Your Honor, we would have an (22) applica-

tion to be made if he continues to do that and wants—

The Court: He has just done it.

Mr. Yanthis: Okay.

The Court: I will do it this way, then.

|

A9

Mr. Zumbo, answer the question at this time in the absence

of the jury. Answer the questions to which you have claimed

the Fifth in the absence of the jury.

Mr. Harvey.

Mr. Harvey: I am not sure I understand what—

The Court: I want to be sure he is going to continue the

Fifth Amendment claim. So, I am directing him—I know that

you think, but I want to know what he thinks.

Mr. Harvey: Yes, sir.

The Court: Do you have the first question?

The Court Reporter: I can find it.

By Mr. Yanthis:

Q. Mr. Zumbo, what jobs relating to Albany County did

County Executive James Coyne assist you in obtaining?

A. Your Honor, once again, I am going to assert my right to

remain silent pursuant to the Fifth and Fourteenth Amend-

ments of the United States Constitution, the Supreme Court

cases pertaining thereto for all purposes, civil and criminal.

The Court: I advise you, Mr. Zumbo, that the Fifth Amend-

ment privilege is not available to you under the (23) circum-

stances of this case and direct you to answer the question.

The Witness: Your Honor, in all due respect, I must assert

my Fifth Amendment and Fourteenth Amendment rights pur-

suant to the Constitution.

Mr. Yanthis: Our application at this time, your Honor,

would be that this witness be held in civil contempt pursuant to

Title 128 U.S. Code Section 1927 and that, I believe—

The Court: 26.

Mr. Yanthis: 26. I am sorry. And—

Mr. Harvey: I missed it.

The Court: 18 U.S. Code—28 U.S. Code 1826.

Mr. Yanthis: 26, recalcitrant witness, and that the Court

order has immediate incarceration until he purges his

contempt.

Al0

The Court: Anything else?

Mr. Yanthis: That’s it, your Honor.

The Court: Mr. Harvey.

Mr. Harvey: Obviously, your Honor, I oppose that applica-

tion and then I will speak when your Honor decides.

The Court: Mr. Zumbo, pursuant to 28 U.S. Code Section

1826, you are hereby held in contempt of this Court and you

will be ordered placed in custody. However, I give you until

Wednesday morning at 9:30 to purge yourself of (24)

contempt.

The Witness: Thank you, your Honor.

The Court: Mr. Harvey.

Mr. Harvey: I want the record to reflect we will imme-

diately file a notice of appeal from your Honor’s order and that

we will immediately fax to the United States Circuit Court of

Appeals papers for an extradited appeal to either your Honor’s

order, in which event there will be no issue, otherwise we will

be back in court Wednesday morning and events will unfold at

that time. I thank your Honor for your consideration.

The Court: Anything else, gentlemen?

Mr. Zumbo, step down, sir.

(Witness excused.)

Mr. Harvey: May I have a copy of this transcript today,

your Honor?

The Court: If you order it, you can have anything you want.

May I have the jury, please.

(Jury present.)

The Court: You are going to feel like I have got you on a

string here. Ladies and gentlemen, I apologize for the delay

and for the period of time you were in the jury room. However,

—

All

we will not be proceeding any further today. The case is going

to be suspended until Wednesday (25) morning at 9:30 so you

have the rest of today and tomorrow.

Please remember the admonitions which I have given you

during the course of this trial. Be back here Wednesday morn-

ing at 9:30. I hope you have a pleasant day and a half. You are

excused.

(Jury excused.)

The Court: All right, gentlemen, Wednesday morning.

Mr. Yanthis: Thank you, your Honor.

Mr. Kelly: Your Honor, if I may just—I want to make sure

that the record is clear that I had a motion to strike all that

testimony and I had a motion for a mistrial in relationship to

this being done in the presence of the jury.

The Court: | think the record is clear. The motion has been

denied.

(Court adjourned at 11:45 AM)

* * *

Certification:

1, THERESA J. BERICAL, CSR, RPR, United States Court

Reporter in and for the United States District Court, Northern

District of New York, do hereby certify that I attended at the

time and place set forth in the heading hereof; that I did make

a stenographic record of the proceedings had in this matter and

cause the same to be transcribed; that the foregoing is a true

and correct copy of the same and the whole thereof.

Theresa J. Berical

Dec. 9, 1991

OO

Al2

United States Court of Appeals for the Second Circuit

Order Granting Expedited Appeal and Denying Stay

dated December 10, 1991.

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 10th day of December, one thou-

sand nine hundred and ninety-one.

Present: Honorable Wilfred Feinberg,

Honorable Jon O. Newman,

Honorable Richard J. Cardamone,

Circuit Judges.

UNITED STATES OF AMERICA,

v Plaintiff,

JOHN GREGORY CROZIER,

Defendant,

JOSEPH V. ZUMBO,

Appellant- Witness.

91-6302

ORDER

Upon consideration of the motion of the appellant-witness

for a stay of the District Court’s order of December 9, 1991,

Al3

holding him in contempt, and for a stay or reversal of the

District Court’s order denying a protective order, and for an

expedited appeal, it is hereby Ordered that the faxed motion

papers may be filed, and the motion for a stay is denied, the

motion for a stay or reversal of the denial of the protective

order is denied, and the motion to expedite the appeal is

granted. Appellant’s brief shall be filed by December 20,

1991; appellee’s brief shall be filed by January 3, 1992,

appellant may file a reply brief by January 8, 1992, and the

appeal will be scheduled for oral argument during the week of

January 13, 1992, or as soon thereafter as the Court’s schedule

permits.

WILFRED FEINBERG

JoN O. NEWMAN

RICHARD J. CARDAMONE

Circuit Judges.

Filed Dec 10 1991

Elaine B. Goldsmith, Clerk

United States Court of Appeals

Second Circuit

Al4

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 10th day of December, one thou-

sand nine hundred and ninety-one.

Present: Honorable Wilfred Feinberg,

Honorable Jon O. Newman,

Circuit Judges.

e -

UNITED STATES OF AMERICA,

Plaintiff,

V.

JOHN GREGORY CROZIER,

Defendant,

JOSEPH V. ZUMBO,

Appellant- Witness.

91-6302

*

ORDER

By Order entered earlier this date, this Court denied appel-

lant’s motion for a stay of the contempt order entered by the

Al5

ORDER

By Order entered earlier this date, this Court denied appel-

lant’s motion for a stay of the contempt order entered by the

District Court. The stay had been requested pending an appeal

of the District Court’s order to this Court. Appellant has now

moved for a stay of the District Court’s order, pending an

application for a stay to be submitted to Justice Clarence

Thomas, as Circuit Justice for the Second Circuit.

Upon consideration of appellant’s motion, the motion 1s

denied.

WILFRED FEINBERG

JON O. NEWMAN

Circuit Judges.

Filed Dec 10 1991

Elaine B. Goldsmith, Clerk

United States Court of Appeals

Second Circuit

Al6

Supreme Court of the United States Order Denying Stay

dated December 11, 1991

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543

December 11, 1991

Mr. Jonathan P. Harvey

Twenty-Nine Elk Street

Albany, NY 12207

Re: Joseph V. Zumbo,

v. United States, et al.

Application No. A-415

Dear Mr. Harvey:

The application for a stay of enforcement of contempt order

of the U.S. District Court for the Northern District of New

York in the above-entitled case has been presented to Justice

Thomas, who on December 11, 1991 endorsed thereon the

following:

“12/11/91

Deny

Clarence Thomas”’

Very truly yours,

WILLIAM K. SUTER, Clerk

By Francis J. Lorson

Chief Deputy Clerk

Al7

NOTE - FOR YOUR INFORMATION: A copy of this letter

has been sent to all interested parties shown on the

attached notification list.

NOTIFICATION LIST

Mr. Jonathan P. Harvey

Twenty-Nine Elk Street

Albany, NY 12207

Mr. Kenneth W. Starr

Solicitor General

U.S. Department of Justice

Washington, DC 20530

Al8

United States District Court for the Northern District of

New York Order Granting Immunity Pursuant to Title

18 U.S.C. Section 6002 and Sealing Order dated Novem-

ber 27, 1991.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YorK.

IN THE MATTER

OF

U.S. v. JOHN GREGORY CROZIER

Cr. No. 91-CR-284

IN RE: JOSEPH V. ZUMBO, A Witness Before The Petit Jury

On the motion of Frederick J. Scullin, Jr., United States

Attorney for the Northern District of New York, by George A.

Yanthis, Assistant U.S. Attorney, and it appearing to the satis-

faction of the court:

1. That JOSEPH V. ZUMBO has been called to testify or

provide other information before the Petit Jury of the United

States presently empaneled within this District: and

2. That in the judgment of the said United States Attorney,

said JOSEPH V. ZUMBO may refuse to testify or provide

other information on the basis of his privilege against self

incrimination; and

—e" |

Al9

3. That in the judgment of the said United States Attorney,

the testimony or other information from said JOSEPH V.

ZUMBO may be necessary to the public interest; and

4. That the aforesaid Motion filed herein has been made

with the approval of the Assistant Attorney General in charge

of the Criminal Division of the Department of Justice, pur-

suant to the authority vested in him by 18 U.S.C. 6003(b) and

28 C.FR. 0.175(a);

NOW, THEREFORE, IT IS ORDERED, pursuant to 18

U.S.C. § 6002 that the said JOSEPH V. ZUMBO give testi-

mony or provide other information he refuses to give or to

provide on the basis of his privilege of self incrimination as to

all matters about which he may be interrogated before said

Petit Jury.

This order shall become effective only if after the date of

the order the said JOSEPH V. ZUMBO refuses to testify or

provide other information on the basis of his privilege against

self incrimination.

DATED: November 27, 1991

Albany, New York

CON. G. CHOLAKIS

U.S. District Judge

Filed Nov 27 199}

George A. Ray, Clerk

U.S. District Court

N.D. of N.Y.

A20

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK.

IN THE MATTER

OF

U.S. v. JOHN GREGORY CROZIER

Cr. No. 91-CR-284

Now, on motion of the United States of America by its

attorney, Frederick J. Scullin, Jr., United States Attorney for

the Northern District of New York, George A. Yanthis, Assis-

tant United States Attorney, of counsel, it is hereby

ORDERED, that the Order Granting Immunity Pursuant to

Tite 18 U.S.C. § 6002 concerning JOSEPH V. ZUMBO

regarding the above captioned matter and this order are

SEALED until further order of this Court.

DATED: November 27, 1991

Albany, New York

CON. G. CHOLAKIS

United States District Judge

Filed Dec 9 1991

George A. Ray, Clerk

U.S. District Court

N.D. of NY.

A21

United States District Court for the Northern District of

New York Motion for Protective Order dated December 5,

1991

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant.

91-CR-284

CGC

*

TO: HON. FREDERICK J. SCULLIN, JR.

United States Attorney

Northern District of New York

By: GEORGE A. YANTHIS

Assistant U.S. Attorney

Broadway and Maiden Lane

Albany, New York 12207-2924

Pursuant to Rule 17 of the Federal Rules of Criminal Pro-

cedure, the subpoenaed witness, JOSEPH V. ZUMBO,

through his attorneys, Harvey and Harvey, Harvey & Mum-

ford, moves this Court for a protective order prohibiting the

A22

compelled testimony of the witness, or in the alternative deny-

ing the application of the U.S. Attorney for an order compel-

ling the testimony of subpoenaed witness Joseph V. Zumbo

under Title 18 U.S.C. §6002 and §6003 on the ground that

such compelled testimony of this lawyer witness would violate

Article V and Article XIV, Section 1, of the Articles in

Addition to, and Amendment of, the Constitution of the United

States of America.

Dated: December 5, 1991

Respectfully submitted,

HARVEY AND

HARVEY, HARVEY & MUMFORD

By: JONATHAN P. HARVEY, Esq.

Federal Bar Roll No. 101-933

Office and P.O. Address

29 Elk Street

Albany, NY 12207

Tel.: (518) 463-449]

A23

United States District Court for the Northern District of

New York Notice of Appeal dated December 9, 1991

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Plaintiff,

against

JOHN GREGORY CROZIER,

Defendant.

91-CR-284 CGC

+

TO: HON. FREDERICK J. SCULLIN, JR.

United States Attorney

Northern District of New York

By: GEORGE A. YANTHIS

Assistant United States Attorney

Broadway and Maiden Lane

Albany, New York 12207-2924

Notice is hereby given that JOSEPH V. ZUMBO, a subpoe-

naed witness in the above-entitled proceeding, hereby appeals

to the United States Court of Appeals for the Second Circuit,

from the Memorandum Decision and Order denying the wit-

ness’ motion for a protective order, entered in this action on

the 6th day of December, 1991, and from this Court’s order

A24

compeiling the witness ZUMBO’S testimony herein, dated the

27th day of November, 1991, and from each and every part

thereof, and from this courts order holding the witness Joseph

V. Zumbo in contempt pursuant to Title 28 USC 1826.

HARVEY AND

HARVEY, HARVEY & MUMFORD

Attorneys for JOSEPH V. ZUMBO

By: JONATHAN P. HARVEY, Esq.

Federal Bar Roll Number 101933

Office and Post Office Address

29 Elk Street

Albany, NY 12207

(518) 463-449]

Filed Dec 9 1991

George A. Ray, Clerk Albany

U.S. District Court N.D. of N-Y.

A25

United States Court of Appeals for the Second Circuit

Notice of Motion to Dismiss Appeal Dated December 13,

1991

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

USA

CROZIER

ZUMBO,

Witness-Appellant

91-6302

MOTION BY:

DAVID R. HOMER

Assistant U.S. Attorney

Northern District of New York

James T. Foley U.S. Courthouse

Albany, New York 12207

518-472-5522

A26

Has consent of opposing counsel:

A. been sought? X Yes

B. been obtained? X No

Has service been effected? X Yes

Is oral argument desired? X No

Requested return date: December 23, 1991

Has argument date of appeal been set:

A. by scheduling order? X Yes

B. by firm date of argument notice? X No

OPPOSING COUNSEL:

JONATHAN P. HARVEY, ESQ.

Harvey, Harvey & Mumford

29 Elk Street

Albany, New York 12207

518-463-4491

Hon. Con. G. Cholakis, United States District Judge

Dismissal of appeal on the ground it is moot.

By:

David R. Homer December 13, 1991 X Plaintiff

Appellant Zumbo applied for a stay of the District Court’s

order of contempt which was denied by order of this Court on

December 10, 1991. On December 11, 1991, this Court denied

appellant Zumbo’s request for a stay of the contempt order to

permit time for an application to the Supreme Court. Also on

December 11, 1991, Justice Clarence Thomas, United States

——<« |

A27

Supreme Court, denied appellant Zumbo’s application for a

stay of the District Court’s order of contempt.

Should this appeal be dismissed as moot?

On December 9, 1991, appellant Zumbo was called to testify

at the criminal trial of United States v. Crozier. Appellant

Zumbo refused to answer questions after being granted statu-

tory immunity. Appellant Zumbo was directed by the District

Court to answer questions, refused, and was held in contempt.

Applications for stays to the District Court, this Court, and the

Supreme Court were denied on December 10 and 11, 1991. On

December 11, 1991, appellant Zumbo thereupon resumed the

witness stand at trial, completing his testimony on December

12, 1991, and thereby purging himself of his contempt. Affi-

davit at paragraphs 4-8.

Appellant Zumbo has filed this appeal from a District Court

order holding him in contempt for refusing to answer ques-

tions as a witness at a pending trial. Appellant Zumbo has now

purged himself of that contempt by testifying at the trial.

Therefore, the issue presented by this appeal is now moot and

the appeal should be dismissed. Memorandum of Law at pages

1-2.

A28

United States District Court for the Northern District of

New York Subpoena in a Criminal Case dated March 16,

1992.

UNITED STATES DISTRICT COURT

NORTHERN DIsTRICT OF NEW YORK

«

UNITED STATES OF AMERICA

V.

JAMES J. COYNE, JR.

91-CR-209

TO: JOSEPH ZUMBO

9 Van Buren Street

Albany, New York

YOU ARE COMMANDED to appear in the United States

District Court at the place, date, and time specified below to

testify in the above case.

Place: UNITED STATES DISTRICT COURT

Northern District of New York

James T. Foley U.S. Courthouse

445 Broadway

Albany, New York 12207

Courtroom: 4th Floor

A29

Date and Time: May 11, 1992

9:00 a.m.

Date: March 16, 1992

U.S. MAGISTRATE JUDGE OR

CLERK OF COURT

GEORGE A. RAY

(By) Deputy Clerk

CATHLEEN G. MILES

ATTORNEY’S NAME, ADDRESS

AND PHONE NUMBER:

GEORGE A. YANTHIS

Assistant U.S. Attorney

James T. Foley U.S. Courthouse

445 Broadway

Albany, NY 12207

Tel: (518) 472-5522