Appendix — Doe v. New Jersey

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APPENDIX A — IN THE MATTER OF DOE,

SUPERIOR COURT OF NEW JERSEY, LAW DIVISION,

DECIDED JANUARY 31, 1996

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: ATLANTIC COUNTY

DOCKET NO. ATL-L-3693-95

IMO

JOHN DOE and ROE CORPORATION

OPINION

Decided: January 31, 1996

Angelo Bianchi for petitioner

William Gicking, Thomas W. Goan, Jr. and Linda A. Rinaldi

for respondent (Office of the Attorney General, State of New

Jersey)

WILLIAMS, A.J.S.C.

Petitioners John Doe and Roe Corporation, having been

served with Investigative Interrogatories under New Jersey's

RICO statute, N.J.S.A. 2C:41-1 to 41-6.2, come before the court

to have the Interrogatories modified or set aside.

On July 27, 1995, the Attorney General’s office served

Petitioners with Investigative Interrogatories pursuant to N.J.S.A.

2C:41-5. The Interrogatories directed Petitioners to appear at

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the offices of the Division of Criminal Justice Organized Crime

and Racketeering Bureau to furnish information demanded

therein in connection with an investigation of the alleged “control

and financing of Roe Corporation and its owner John Doe by

Organized Crime.” September 11, 1995 was designated as the

return date for response to the Interrogatories, which date was

thereafter extended by the Attorney General to September 18,

1995. The Interrogatories further indicated that compliance

could be effected by delivery of all of the requested materials,

prior to the return date, to a designated state police detective.

On September 12, 1995, Petitioners initiated proceedings

in Essex County, pursuant to N.J.S.A. 2C:41-5j, to modify or

set aside the Investigative Interrogatories. The next morning,

on September 13, 1995, the Attorney General filed a Petition

in Atlantic County, pursuant to N.J.S.A. 2C:41-5i, to Compel

Answers to the Interrogatories. The files were sealed by the

court in both counties.

On September 29, the court dismissed the Attorney

General’s Petition to Compel Answers as prematurely filed,

based upon the pendency of Petitioners’ application in Essex

County. Thereafter, on October 2, the proceedings were

transferred to Atlantic County for disposition.

Petitioners assert a potpourri of arguments upon which their

requests for relief are based. Some are asserted with greater clarity

than others. As set forth in their brief, those arguments are as

follows:

* “N.J.S.A. 2C:41-5 is unconstitutional”:

* “They [Investigative Interrogatories] violate

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[Petitioners’] right to be free from unreasonable

searches and seizures and they fail to establish any

connection between [Roe Corporation’s] records and

the Attorney General’s investigation”;

* “They violate [Petitioners’] right to due process

of law”;

* “They violate [Petitioners’] right to be free from

self-incrimination”;

* “N.J.S.A. 2C:41-5 was not enacted to be used

against targets of RICO investigations”; and

* “Most of the questions asked are so broad,

overbearing and not capable of being fully answered,

or not of a nature to lead to relevant discoverable

matter, that they should be struck.”

In addressing these arguments, an understanding of the

history of our RICO statute is helpful. On October 15, 1970,

the United States Congress enacted the Racketeer Influenced

and Corrupt Organizations (RICO) provisions of the Organized

Crime Control Act as a weapon against the pervasive influence

of organized crime. See, 18 U.S.C.A. §§ 1961 to 1968. RICO

was predicated upon the realization that organized crime and its

predatory practices in business ventures threatened the integrity

of the American economy and the security of the public. See, S.

Rep. No. 617, 91st Cong., Ist Sess., 76-79 (1969). The RICO

Act enhanced efforts to combat the evils of organized crime

through the creation of new criminal offenses in circumstances

where businesses were acquired, controlled, or operated through

activities or funds originating from patterns of racketeering

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activity. See, 18 U.S.C.A. §§ 1961, 1962. In addition, it created

new causes for civil relief and included provisions for private

enforcement of civil RICO claims. See, 42 U.S.C.A. § 1964. It

also created additional investigative tools in the form of

investigative demands, 42 U.S.C.A. § 1968, and provided for

sanctions in the form of forfeiture and treble damages. 42

U.S.C.A. § 1964.

In the decades following the federal enactment of RICO,

many states have adopted RICO-type statutory schemes. See,

Ariz. Rev. Stat. Ann. 13-2301 to 13-2316; Cal. Penal Code

186-186.8; Colo. Rev. Stat. Ann. 18-17-101 to 18-17-109;

Conn. Gen. Stat. Ann. 53-393 to 53-403; Del. Code Ann. tit.

11, 1501-1511; Fla. Stat. Ann. 895.01-895.05; Ga. Code. Ann.

16-14-1 to 16-14-15; Haw. Rev. Stat. 842-1 to 842-12; Idaho

Code 18-7801 to 18-7805; Jil. Rev. Stat. ch. 56 %, 1651-1661;

Ind. Code Ann. 35-45-6-1 to 35-45-6-22; La. Rev. Stat. Ann.

15:1351-56; Miss. Code Ann. 97-43-1 to 97-43-11; Nev. Rev.

Stat. Ann. 207.350-.520; N.J.S.A. 2C:41-1 to 2C:41-6.2; N.M.

Stat. Ann. 30-42-1 to 30-42-6; N.Y. Penal Law 460.00-.80;

N.C. Gen. Stat. 75-D-1 to 75-D-14; N.D. Cent. Code 12.1-

06.1-01 to 12.1-06.1-08; Ohio Rev. Code Ann. 2923.31-.36;

Okla. Stat. Ann. tit. 22 1401-1419; Or. Rev. Stat. 166.715-

.735; Pa. Cons. Stat. Ann. tit. 18,911; R.J. Gen. Laws 7-15-1

to 7-15-11; Tenn. Code Ann. 39-12-201 to 39-12-210; Utah

Code Ann. 76-10-1601 to 76-10-1608; Wash. Rev. Code Ann.

9A.82.010-.901; Wis. Stat. Ann 946.80-.88.

New Jersey enacted a Racketeering section in 1981 as part

of its Code of Criminal Justice. L. 1981, c. 167 (codified at

N.J.S.A. 2C:41-1 to 41-6.2.) The express legislative intent of

New Jersey’s RICO statute is set forth in section 2C:41-1.1;

which provides:

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The Legislature hereby finds and declares to be the

public policy of this State, the following:

a. By enactment of the “Criminal Justice Act of

1970,” P.L. 1970, c. 74 (C. 52: 17B-97 et seq.), the

Legislature recognized that the existence of organized

crime and organized crime type activities presents a

serious threat to the political, social, and economic

institutions of this State.

b. Despite the impressive gains of our law

enforcement agencies, organized crime and similar

activities in this State are still a highly sophisticated,

diversified and widespread activity that annually

drains millions of dollars from the State’s economy

by unlawful conduct and the illegal use of force,

fraud and corruption. In recent years, that organized

crime and organized criminal activity has[sic] spread

to the operation of otherwise legitimate businesses.

c. In order to safeguard the public interest, effective

criminal and civil sanctions are needed to prevent,

disrupt and eliminate the infiltration of organized

crime type activities which are substantial in nature

into the legitimate trade or commerce of this State.

It is, therefore, in the public interest to provide that

activity which is inimical to the general health,

welfare and prosperity of the State and its inhabitants

be made subject to strict civil and criminal sanctions.

Like its federal counterpart, the New Jersey RICO statute

is premised on the need to address the influence of organized

crime upon New Jersey businesses. One mechanism authorized

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in the Federal RICO statute to combat organized crime was the

use of investigative demands. See, 11 U.S.C.A. § 1968. Like

the federal RICO statute, the New Jersey RICO statute also

provides for the issuance of investigative demands, referred to

in this State as “Investigative Interrogatories.” N.J.S.A. 2C:41-

5a, provides:

Whenever the Attorney General determines that there

exists a reasonable suspicion that any person or

enterprise may have information or be in possession,

custody, or control of any documentary materials

relevant to an investigation under this chapter, or

whenever the Attorney General believes it to be in

the public interest that an investigation be made

pursuant to this chapter, he may, prior to the

institution of a civil or criminal proceeding thereon,

issue in writing, and cause to be served upon the

person, an investigative interrogatory requiring him

to answer and produce materials for examination.

Pursuant to this section, the Attorney General served the

Investigative Interrogatories herein, thereby giving rise to the

application to modify or set aside now before this court.

In the first of their challenges to the Interrogatories,

Petitioners argue that the RICO statute is “unconstitutional” in

that it impermissible gives the Attorney General the power to

act as both Prosecutor and Grand Jury. Petitioners’ general claim

of unconstitutionality sounds in the nature of a separation of

powers argument, although not precisely so stated.

Petitioners argue that because the Investigative

Interrogatories require that the requested information be

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furnished directly to the Attorney General, the Attorney General

is therefore given the power to act as both Prosecutor and Grand

Jury. Petitioners cite State v. Hilltop Private Nursing Home Inc.,

177 N.J. Super. 377 (1981), to support an assertion that the

Attorney General does not possess and cannot exercise such

investigative powers.

This reliance upon Hilltop is misplaced. In Hilltop the Court

recognized the independence of the Grand Jury as a public

institution and reaffirmed the principle that a Prosecutor did

not have the inherent power to subpoena any individual to

appear before the Prosecutor’s office and produce evidence. /d.

at 389 (citing State v. Foy, 146 N.J. Super. 378, 391 (Law Div.

1976), app. dism. 153 N.J. Super. 803 (App. Div. 1977); United

States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67

(1973) ). The Prosecutor could only issue a subpoena duces

tecum returnable for a date on which a Grand Jury would actually

be sitting, and although such a subpoena could allow for

voluntary delivery of the requested materials directly to the

Prosecutor, it could not restrict the opportunity to present the

materials directly to the Grand Jury if the witness so desired.

Hilltop was premised, however, on the extent of powers inherent

in the executive branch of government. It did not contemplate

a situation involving an explicit grant of investigative powers

to the Attorney General by the Legislature, such as in this case.

The use of interrogatories or investigative demands is not

unusual. Such tools have long been used in the context of

antitrust and securities matters. See, N.J.S.A. 56:9-9; 15

U.S.C.A. §§ 1312-1313 (antitrust civil investigative demands);

15 U.S.C.A. § 78u (SEC investigations). Investigative demands,

like those in both the federal and New Jersey RICO statutes,

enable the Attorney General to determine whether a racketeering

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violation has occurred and if civil or criminal proceedings should

be instituted. That the Legislature may supplement the

investigative power inherent in the Executive Branch is beyond

question. U.S. v. DeGrosa, 405 F.2d 926, cert. denied, Zudick

v. U.S., 394 U.S. 973, 89 S. Ct. 1465, 22 L. Ed. 2d 753;

Application of Waterfront Commission of New York Harbor, 32

N.J. 323 (1960); Greenblatt v. New Jersey Bd. of Pharmacy,

214 N.J. Super. 269 (App. Div. 1986). Petitioners’ challenge

on this basis is therefore without merit.

Petitioners next assert that because N.J.S.A. 2C:41-5 does

not require a showing of probable cause before the Attorney

General may serve Investigative Interrogatories, the statute is

violative of the right to be free from unreasonable searches and

seizures as guaranteed by the Fourth Amendment of the United

States Constitution and Article I, paragraph 7 of the New Jersey

Constitution.

Petitioners are correct in observing that nothing in the statute

requires a showing of probable cause before interrogatories may

be issued. However, such a standard is not required by either

the United States or New Jersey Constitutions. In Oklahoma

Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494,

90 L. Ed. 614 (1946), the Court set out three conditions for the

validity of an administrative subpoena. Under the Oklahoma

Press standard, the administrative subpoena must be sought for

a “lawfully authorized purpose,” documents requested must be

“relevant to the inquiry,” and adequate specification of those

documents must be provided. Jd. at 209. While the Court stated

that an agency may not act arbitrarily or in excess of its statutory

authority, it also emphasized that the inquiry need not be limited

by “forecasts of the probable result or the investigation.” Jd. at

216 (quoting Blair v. United States, 250 U.S. 273, 282, 39 S.

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Ct. 468, 471, 63 L. Ed. 979 (1919) ). In United States v. Morton

Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950),

the Court upheld the broad powers of administrative inquiry,

expressly likening the proper scope of an administrative

subpoena to the broad powers of inquiry possessed by the Grand

Jury. Affirming this position, the Court in United States v.

Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d. 112 (1964),

stated that an agency need not show probable cause but only

must demonstrate that its purpose is legitimate under statute,

that the inquiry is relevant to that purpose, and that the required

administrative steps have been duly followed. As with Grand

Jury subpoenas, an unreasonably broad or overly burdensome

administrative demand may be set aside or modified, but the

party challenging the demand bears the burden of proof. FTC

v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). As such,

with respect to the proper standard of judicial scrutiny, case law

has essentially treated the Grand Jury subpoena and the civil

investigative demand in a similar fashion.

New Jersey’s RICO Act has done the same. The Legislature

has expressly provided a standard to determine what information

may be requested in an investigative interrogatory.

N.J.S.A. 2C:41-Sc provides:

No interrogatory shall:

(1) Contain any requirement which would be held

to be unreasonable if contained in a subpena duces

tecum issued in aid of a Grand Jury investigation;

or

(2) Require the production of any documentary

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evidence which would be otherwise privileged from

disclosure if demanded by a subpena duces tecum

issued in aid of a Grand Jury investigation.

The standard to be applied in a challenge to an Investigative

Interrogatory issued under New Jersey’s RICO statutes is-

therefore the same as that applied to a subpoena duces tecum

issued in aid of a Grand Jury investigation. Under Fourth

Amendment analysis, a subpoena duces tecum is reasonable

without probable cause if it is “sufficiently limited in scope,

relevant in purpose, and specific in directive so that compliance

will not be unreasonably burdensome.” Jn re Addonizio, 53

N.J. 107, 128 (1968) (quoting See v. City of Seattle, 387 U.S.

541, 544, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943, 947 (1967) );

See, Greenblatt 214 N.J. Super. at 275. Petitioners’ argument

that the statute must require a showing of probable cause is

simply not well founded.

Furthermore, the statute provides for a judicial hearing to

independently evaluate an interrogatory request before any

response need be provided. N.J.S.A. 2C:41-5¢ staies:

At any time before the return date specified in the

interrogatory, such person may file in the Superior

Court a petition for an order modifying or setting

aside the interrogatory. The time allowed for

compliance of the interrogatory, in whole or in part

as deemed proper and ordered by the court, shall

not run during the pendency of such petition in the

court. The petition shall specify each ground upon

which the petitioner relies in seeking relief, and may

be based upon any failure of the interrogatory to

comply with the provisions of this section or upon

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any constitutional or other legal right or privilege

of the petitioner. In such proceedings the Attorney

General shall establish the existence of an

investigation pursuant to this chapter and the nature

and subject matter of the investigation.

Thus, under subsection (j), a party served with Investigative

Interrogatories pursuant to the statute may obtain independent

judicial review of the reasonableness of the demand prior to

incurring any obligation to comply. See, See v. Seattle, 387

U.S. at 544-545, 87 S. Ct. at 1739-1740, 18 L. Ed. 2d at 947

(1967).

Petitioners’ additional assertion that a “seizure” has occurred

is also without merit. It is well established that although a

subpoena to appear before a Grand Jury may be inconvenient

or burdensome, it is not viewed as a seizure within the meaning

of the Fourth Amendment. Jn re Grand Jury Proceedings

Harrisburg Grand Jury, 658 F.2d 211, 213 (3d Cir. 1982).

Petitioners next argue that the enforcement provisions of

this section of the RICO statute violate their right to due process.

They assert that N.J.S.A. 2C:41-5i, on its face, does not afford

process equal to that given a witness subpoenaed to appear

before a Grand Jury. Petitioners argue that the statute permits

the Attorney General to obtain an order directing compliance

with the Investigative Interrogatory, without first giving a

targeted individual or corporation notice and an opportunity to

be heard. N.J.S.A. 2C:41-5i provides as follows:

Whenever any person fails to comply with any

investigative interrogatory duly served upon him

under this section or whenever satisfactory copying

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or reproduction of any materials cannot be done and

the person refuses to surrender that material, the

Attorney General may file in the Superior Court a

petition for an order for the enforcement of this

section.

PST OTA ERR RNIN FM

Due process is a dynamic concept whose “sense of fairness

cannot be imprisoned in crystal.” Callen v. Sherman’s Inc., 92

N.J. 114, 134 (1983). Notwithstanding the flexible nature of

due process, it is settled that “the guarantee requires, at the

minimum, notice to the affected party combined with an effective

opportunity to respond.” Jn re Promulgation of Guardianship

Services Req., 103 N.J. 619, 632 (citing Cleveland Bd. of

Education v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487,

1495, 84 L.Ed. 2d 494, 506 (1985) ). In determining whether

a constitutional defect exists within a statute, the court must

preliminarily assume that the Legislature intended to act in a

constitutional manner. Right to Choose v. Byrne, 91 N.J.; 287,

311 (1982) (citing State v. Profaci, 56 N.J. 346, 349-50

(1970) ). The court’s duty is to save a statute if it is reasonably

susceptible to a constitutional interpretation. Jd.

When N.J.S.A. 2C:41-5 is read as a whole, there is no doubt

that a person is never compelled to comply with Investigative

Interrogatories under this statute without being afforded an

opportunity for independent review. It is correct, that read in

isolation, N.J.S.A. 2C:41-5 does not explicitly provide for notice

to the recipient in the event the Attorney General petitions the

court to compel compliance. However, the provisions of the

Act must be read in pari materia. N.J.S.A. 2C:41-5j provides

for the filing of a petition by a recipient of Investigative

Interrogatories to modify or set aside the Interrogatories.

Pursuant to the provisions of N.J.S.A. 2C:41-5j, this matter is,

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in fact, now before this court for review. Inclusion of this

provision demonstrates the legislative sensitivity to due process

rights. Where the Legislature has provided the recipient of

Interrogatories with an opportunity to seek judicial modification

or set aside of Interrogatories, it is inconceivable that it did not

also intend that there be a right to notice and a hearing on a

petition to compel compliance filed by the Attorney General.

When determining that a notice requirement is necessary

_ to maintain the constitutionality of a statute, the court may read

such a réquirement into the statute. See, Right to Choose v.

Byrne, 91 N.J. at 311 (1982); State v. DeSantis, 65 N.J. 462,

473 (1974). A fair reading of the Act as a whole compels the

conclusion that the Legislature intended that notice be given

by the Attorney General when filing a petition pursuant to

N.J.S.A. 2C:41-51. As such, the challenged section fully protects

Petitioners’ constitutional right of due process.

Petitioners next argue that a review of the legislative history

indicates that N.J.S.A. 2C:41-5 was not intended to be used

against targets of RICO investigations. Petitioners assert that

since they are targets of the investigation, the State may not

obtain information from them by way of the investigative

interrogatory process. It is not clear to the court that the Attorney

General has explicitly identified Petitioners as targets of the

investigation. The analysis of this issue will proceed, however,

as if Petitioners were such targets.

On October 30, 1980, the Assembly Judiciary, Law, Public

Safety and Defense Committee conducted a hearing pursuant

to its consideration of Assembly Bill 1079. To support their

assertion that targets of an investigation were to be excluded

from the provisions dealing with investigative interrogatories,

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Petitioners rely upon certain selected statements made during

that Committee hearing.

In response to a question from Assemblyman Herman about

how the committee could protect against prosecutorial abuse,

the Deputy Attorney General stated:

[W]ell, this section of the bill was designed in two

parts, the first was to give the Attorney General the

power to gather evidence from, primarily, third

parties, individuals who may have knowledge of a

particular activity that would fit into the

government’s overall idea of what happened.

(emphasis added)

Petitioners point to this statement to assert that the legislation

was directed toward third parties and not targets of an

investigation. However, the statement does not indicate that the

supporters of the legislation intended to exclude targets of an

investigation from its provisions. The statement that the bill

was designed to give the Attorney General power to gather

evidence “primarily” from third parties suggests that the

proponents of the bill recognized that in some instances

interrogatories would be directed to targets or potential targets

and did not intend that the powers be used exclusively with

respect to third parties. When setting forth examples of other

statutes with similar investigative devices, the Deputy Attorney

General referred to New Jersey’s Antitrust Act which, he

indicated, was used to investigate garbage collectors in the State

who combined to restrain trade. He stated:

We used the investigative demand tool to go to

people who purchased garbage services throughout

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the service [sic] by means of questionnaire. We asked

them to respond as to who was providing the service,

what price, how they went about choosing their

collectors, whether or not the attempt to choose

another collector was made and whether they [were]

able to get the service.

Later, in response to a question about that specific

investigation, he further responded:

We didn't send Interrogatories to any people we felt

were targets of our Interrogatories. These

Interrogatories were primarily sent to people like

yourselves who might have been part of the garbage

industry and they have purchased services and had

valuable information for us in order for us to pinpoint

the particular targets or areas of concern. (emphasis

added)

Petitioners point to this statement as further support for

their argument that there was an intent to exclude targets from

the statute. It is clear, however, that this statement about not

sending interrogatories to targets was in direct response to a

question about the use of interrogatories in a specific

investigation and not a general statement about the intended

scope of the legislation.

Finally, Petitioners rely upon the followirz statement made

by Governor’s Counsel during the hearings: “It’s not the targets

we're targeting here.”

This statement occurred in the context of a discussion

concerning how safeguards could be provided in a situation

— Es ROSS nn OP

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where interrogatories were sent to a target of the investigation.

The Public Defender argued that the only way to provide

adequate safeguards would be to prevent the use of Investigative

Interrogatories directed at targets. In this context, Governor’s

Counsel’s remarks can be seen as nothing more than a reiteration

of the Deputy Attorney General’s comments that the Investigative

Interrogatories were to be used primarily for non-targets.

In seeking to provide adequate safeguards, the Committee

thereafter disregarded the suggestion of limiting the

Interrogatories to nontargets. Instead, the Committee focused

on other means of procedural protection. Assemblyman Herman,

the Committee Chair, stated:

Maybe the answer here, while we are thinking of

proposing amendments, maybe each questionnaire

that is sent out ought to tell him that he has a right

to counsel and ought to tell him, if he objects, he

has a right to contest it under this particular section,

as just one of the potential safeguards.

Upon reconvening after a Committee recess, the following

colloquy occurred between the Deputy Attorney General and

the Committee Chair:

DEPUTY ATTORNEY GENERAL: You asked,

also, for protection to the recipients of the

Interrogatories and we propose adding another sub-

paragraph under paragraph B, so that the

Interrogatories shall contain an affirmative advice

to the recipient that he may discuss these investigative

demands with an attorney prior to returning it or

making the material available for inspection,

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Appendix A

pursuant to subsection F. . . . Also there is paragraph

J, that he has the right to apply to the court prior to

making any return of the preliminary reply.

ASSEMBLYMAN HERMAN: Okay. That goes a

long way in balancing our sense of fair play.

The function of the court in construing any statute is to

give effect to the legislative intention and purpose. State v.

Valentin, 208 N.J. Super. 536, 535 (App. Div. 1986); Raybestos-

Manhattan, Inc. v. Glaser, 144 N.J. Super. 152, 167 (Ch. Div.

1976). In examining legislative intent, the court must first direct

its inquiry to the actual language of the statute. Schiavo v. John

F. Kennedy Hosp., 258 N.J. Super. 380, 386 (App. Div. 1992),

aff'd., 131 N.J. Super 400 (1993). It is to be presumed that the

legislative intent is expressed by the ordinary meaning of the

words used, and if the statutory language is clear, it is not

necessary to examine legislative history. Licata v. U.S. Postal

Service, 33 F.3d 259, 261 (3rd Cir. 1994); Harris v. Harris,

749 F.2d 1009, 1013 (3rd Cir. 1984); State v. Mortimer, 135

N.J. 517, 532, cert. denied, 115 S. Ct. 440, 130 L. Ed. 2d 351

(1994). The court must therefore seek to ascertain the intention

of the Legislature from the plain meaning of the statute and

determine what sensible legislators would intend a court to do.

State v. Zahl, 259 N.J. Super. 372, 375 (Law 1992); Johns-

Manville Products Corp. v. Dronebarger, 211 N.J. Super. 520,

505 (Law 1986).

N.J.S.A. 2C:41-5a expressly provides the Attorney General

may serve Interrogatories on “any person or enterprise” that

may have relevant information. The language used in the statute

is specific and in no way does it distinguish between classes of

persons or enterprises. Nothing on the face of the statute indicates

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an intent to exclude targets from its scope. Neither is the

legislative history offered by Petitioners persuasive that the

Legislature intended to exclude targets of an investigation from

the scope of the Investigative Interrogatory provisions. While

the statements of the Deputy Attorney General and others-

suggest that the focus of the legislation may primarily have

been directed to non-targets of an investigation, nothing in the

transcript of the Committee proceeding suggests that the

Legislature specifically intended to exclude target witnesses from

ever receiving Investigative Interrogatories. That possibility was

explicitly raised by the public defender in the legislative hearings

and was not pursued by the Committee. If there were a clear

legislative intent to limit Interrogatories to only non-targets,

such express language could easily have been included in the

statute.

Furthermore, the Investigative Interrogatories are subject to the

same standards as a Grand Jury subpoena duces tecum. Within the

context of the Grand Jury, both targets and non-targets are subject to

subpoena. See, State v. Sarcone, 96 N.J. Super. 501 (Law Div. 1967).

Just as targets are not excluded from the Grand Jury, there is no reason

to believe that they were intended to be excluded from the scope of

N.J.S.A. 2C:41-5.

As a practical matter, it may sometimes be difficult, if not

impossible, to determine when a non-target witness becomes a

target. Such could occur at any point during the course of an

investigation. For this reason, the statute provides safeguards

directed towards the type of information sought, not the status

of the person served. If Investigative Interrogatories are served

upon a target of an investigation, there is nothing to suggest

that the target may not assert all of the protections that would

be available if he had been served with a Grand Jury subpoena

in the same investigation.

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Petitioners raise two additional issues which will be

addressed as required in further proceedings. First, Petitioners

assert that the Investigative Interrogatories herein are overbroad.

They cite N.J. Court Rule 4:10-3, which authorizes the court to

enter protective orders in civil proceedings. It is clear however,

that said Rule does not provide the standard applicable herein.

N.J.S.A. 2C:41-Se provides:

No interrogatory shall:

(1) Contain any requirement which would be held

to be unreasonable if contained in a subpena duces

tecum issued in aid of a Grand Jury investigation;

or

(2) Require the production of any documentary

evidence which would be otherwise privileged from

disclosure if demanded by a subpena duces tecum

issued in aid of a Grand Jury investigation.

The standard to be applied to a claim that the Interrogatories

are overbroad is the same standard that would be applied to the

issuance of a Grand Jury subpoena. Such an analysis with respect

to the Interrogatories herein will require further proceedings

which will be scheduled by this court forthwith.

Petitioners next argue that, based upon their Fifth

Amendment privilege against self-incrimination as guaranteed

to the states through the due process clause of the Fourteenth

Amendment, they are not compelled to answer the

Interrogatories. See, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct.

1489, 12 L.Ed. 2d 653 (1964).

20a

Appendix A

The Fifth Amendment does not prohibit the State from

asking questions. Jn re Martin, 90 N.J. 2957 331 (1982). In

response to such questions, one has the liberty either to waive

the privilege by answering the incriminatory question or to assert

the privilege and refuse to incriminate oneself. State v. Toscano,

13 N.J. 418, 423 (1953). Where the privilege is asserted, the

Attorney General may challenge the validity of the privilege

claim through application to the court. Jn re Boyd, 36 N.J. 285

(1962); In re Boiardo, 34 N.J. 599 (1961); State v. DeCola, 33

N.J. 335 (1960). Such a proceeding requires an analysis of

each individual question eliciting a claim of privilege. The court

cannot simply accept the witness’s statement that the requested

answer will tend to incriminate the witness. Jn re Boiardo, 34

N.J. at 606. Rather, the witness must support his assertion of

privilege by a statement to the court specifically indicating the

nature of the incrimination which the witness fears. The witness

must establish a legitimate basis for the fear of criminal

prosecution. DeCola, 33 N.J. at 350. If the witness is a target

of the investigation, however, such witness need show no more

than that fact in order to support his or her Fifth Amendment

claim. In re Addonizio, 53 N.J. 107 (1968).

Oe ae Gace

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sar T ORS

Resolution of this issue is premature. Petitioners have not

yet responded to the Interrogatories, so it is not clear whether

the privilege will actually be asserted with respect to some or

all of the questions. If such were to happen, it is not certain that

the Attorney General would necessarily challenge the claim of

privilege in whole or in part. Furthermore, the privilege has

not been held to apply to corporations. United States v. White,

322 U.S. 694, 698, 64 S. Cr. 1248, 1251, 88 L.Ed. 1542,

1546 (1944). Therefore, even if Petitioner Doe were to assert a

privilege on his behalf as an individual, it would appear that

answers would nevertheless have to be provided by Petitioner

Roe Corporation.

——————

© nae

2la

Appendix A

The court will schedule further proceedings on Petitioners’

claims that the Interrogatories are overbroad and unduly

burdensome. If additional proceedings are required with respect

to a Fifth Amendment claim of privilege, such will be scheduled

as necessary. In all other respects, Petitioners’ application to

modify or set aside the Interrogatories is denied. The Attorney

General will submit an appropriate order.

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22a

APPENDIX B — IN THE MATTER OF DOE, SUPERIOR

COURT OF NEW JERSEY, APPELLATE DIVISION

FILED JUNE 20, 1997

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-4643-95T1

In the Matter of JOHN DOE and ROE CORPORATION.

Argued March 24, 1997 - Decided Jun 20 1997

Before Judges Brochin, Kestin and Eichen

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County

Angelo R. Bianchi argued the cause for petitioners John

Doe and Roe Corporation (Bianchi & Bianchi, attorneys; Mr.

Bianchi and Mark A. Wenczel, on the brief).

Linda A. Rinaldi, Deputy Attorney General, argued the

cause for respondent State of New Jersey (Peter Verniero,

Attorney General of New Jersey, attorney; Ms. Rinaldi, of

counsel and on the brief).

The opinion of the court was delivered by

BROCHIN, J.A.D.

23a

Appendix B

The New Jersey Attorney General served investigative

interrogatories on John Doe and Roe Corporation! pursuant to

N.J.S.A. 2C:41-5. That statute reads in part as follows:

a. Whenever the Attorney General determines that

there exists a reasonable suspicion that any person

or enterprise may have information or be in

Possession, custody, or control of any documentary

materials relevant to an investigation under this

chapter [Chapter 41, Racketeering], or whenever the

Attorney General believes it to be in the public

interest that an investigation be made pursuant to

this chapter, he may, prior to the institution of a

civil or criminal proceeding thereon, issue in writing,

and cause to be served upon the person, an

investigative interrogatory requiring him to answer

and produce material for examination.

The attorney general served two sets of interrogatories, one

on John Doe and one on Roe Corporation. Both sets were

substantially identical. Each set consisted of 291 questions.

Many of the questions had multiple subparts. The interrogatories

also required the parties to whom they were addressed to

produce all of the corporate records of Roe Corporation. A face

Sheet attached to each set of interrogatories recited that the

information asked for was necessary in connection with the

enforcement of the New Jersey Racketeering Law, N.J.S.A.

2C:41-1 et seq. and, although the language of the face sheet is

ambiguous, it apparently was intended to allege that the

Suspected conduct which constituted racketeering was “[t]he

1. The Law Division used these fictitious names to designate

the individual and the corporation to whom the interrogatories were

directed. We have adopted the same practice in this opinion.

Set ORE ESE AE IO PRES fe IEE

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24a

Appendix B

control and financing of [Roe Corporation] and its owner, [John

Doe], by Organized Crime.”

N.J.S.A. 2C:41-5j reads in part as follows:

At any time before the return date specified in

the interrogatory, such person [i.e., any person upon

whom an investigative interrogatory has been served]

may file in the Superior Court a petition for an order

modifying or setting aside the interrogatory. . . . The

petition shall specify each ground upon which the

petitioner relies in seeking relief, and may be based

upon any failure of the interrogatory to comply with

the provisions of this section or upon any

constitutional or other legal right or privilege of the

petitioner. In such proceeding the Attorney General

shall establish the existence of an investigation

pursuant to this chapter and the nature and subject

matter of the investigation.

Pursuant to this section, Doe and Roe petitioned the Law

Division of the Superior Court “to set aside the Investigative

Interrogatories and accompanying request for documents

pursuant to N.J.S.A. 2C:41-5(j).”

Doe and Roe’s petition alleged the following grounds for

relief:

(1) ... The investigative powers delegated to the

attorney general under N.J.S.A. 2C:41-5 are

unconstitutional [because] [t]hey impermissible give

the attorney general the power to act as prosecutor

and grand jury.

25a

Appendix B

The attorney general has failed to satisfy N.J.S.A.

2C:41-5b(1) by failing to adequately “state the nature

of the conduct constituting the alleged violation

which is under investigation.” . . .

(2) ... The investigation violates [Doe’s] right to

be free from unreasonable searches and seizures.

N.J.S.A. 2C:41-5 does not require the attorney

general to establish probable cause. Reasonable

suspicion suffices. . . .

[N]o reasonable basis for the State’s suspicion exists.

(3) ... [T]he investigative interrogatories served

upon [Doe] and [Roe] unconstitutionally deprive

[Doe] of his right to due process of law....

(4) ... On the basis of his reasonable fear that the

questions put to him will tend to incriminate, [Doe]

petitions this court to set aside the Investigative

Interrogatories as they violate his right to be free

from self-incrimination.

The Law Division (Honorable Richard J. Williams,

A.J.S.C.) heard extensive argument on Doe and Roe’s petition

and on the State’s motion to enforce its investigative

interrogatories. On October 27, 1995, the petitioners argued

their constitutional and statutory objections to the

interrogatories. At the commencement of the hearing on that

date, Judge Williams summarized his understanding of the issues

which petitioners were raising. To the issues which we have

listed from the brief submitted in support of the petition, he

added the following: “that the investigative interrogatories are

overbroad, unduly burdensome, and unreasonably intrusive.”

26a

Appendix B

Judge Williams issued his comprehensive, published

opinion sustaining the constitutionality of N.J.S.A. 2C:41-5 on

January 31, 1996. See In re Doe, 294 N.J. Super. 108 (Law

Div. 1996). The court rejected the petitioners’ contentions that

the interrogatories should be set aside because petitioners were

the intended targets of the State’s investigation, id. at 123-26,

but the court required further hearings to consider petitioners’

contentions that the individual questions included in the

interrogatories were unnecessarily and unfairly broad, vague,

and intrusive. Jd. at 127.

On February 23 and February 26, 1996, the hearings were

held. As an initial matter, the court rejected the petitioners’

contentions that the interrogatories should be set aside because

the State had leaked Doe’s and Roe’s identity to the news media.

The court then considered the interrogatories, one by one, and

ruled on every objection to their form and substance that

petitioners chose to raise. As a result of the arguments presented,

the State withdrew or modified many of its interrogatories and

the Court struck or modified many others. No copy of the

interrogatories, either as originally served on petitioners or as

ultimately modified, have been included in the record submitted

to us. In their brief to our court, petitioners have not challenged

any of the interrogatories because of their specific form or

content.

These determinations by Judge Williams resulted in the entry

of an interlocutory order dated March 26, 1996 requiring Roe

Corporation to accord the state access to its documents and both

petitioners to answer the interrogatories within fourteen days; a

supplemental order dated April 23, 1996, ordering fines for

noncompliance with the prior order; and a June 7, 1996 order

denying reconsideration. Petitioners’ appeal disputes these

27a

Appendix B

orders on essentially the same grounds as those which they

urged before the Law Division, except that they no longer

challenge the form or content of individual questions.

With respect to all of the issues raised by petitioners’

arguments before Judge Williams and dealt with in his published

opinion, we affirm on the basis of that opinion. Petitioners also

argue to us that they should be relieved from answering the

investigative interrogatories because the identity of Doe and

Roe and the racketeering activities of which they are suspected

were disclosed to the news media and because the State failed

to establish a statutory predicate for enforcement of the

interrogatories. These arguments, based on the “leak” and the

alleged failure to establish a statutory predicate, are not expressly

dealt with in the published opinion or any of the subsequent

orders. However, Judge Williams dealt with them in an informal

ruling on the record.

In that ruling, Judge Williams held that the petitioners had

not proved that the State was the source of the disclosure which

resulted in newspaper stories identifying petitioners, their

business activities, and their alleged connections with organized

crime, and that, if some State employee was the source, the

Statute itself prescribed the exclusive remedy. We agree. N.J.S.A.

2C:41-5f states, in relevant part:

Any person who shall disclose to any person

other than the Attorney General or a person retained

by the Attorney General as set forth above, the name

of any person who receives an investigative

interrogatory or any information obtained pursuant

thereto, except in proceedings involving an alleged

violation of this chapter and except as so directed

SEO SP ESTES

:

.

28a

Appendix B

by the Attorney General shall be guilty of a crime

of the fourth degree.

The court does not have the authority to create any other

remedy for the disclosures indicated by the record in this case.

N.J.S.A. 2C: 41-Sa permits an investigative interrogatory

to be issued whenever the Attorney General determines that

there is a “reasonable suspicion that any person or enterprise

may have information or be in possession ... of any

documentary materials relevant to an investigation” or

“whenever the Attorney General believes it to be in the public

interest that an investigation be made” pursuant to the

racketeering laws. As Judge Williams held, a showing of

probable Cause is not required either by the statute or by the

Federal or State Constitution. Jn re Doe, 294 N.J. Super. at

119. The statute requires only “a reasonable suspicion” that the

person to whom the interrogatory is directed “may have

information” relevant to a present investigation or to an

investigation which the Attorney General believes would be in

the public interest. These statements are merely iterations of the

basic proposition that the Attorney General has broad authority

and discretion to conduct an investigation into any suspected

criminal activity. This is an authority and discretion which cannot

be circumscribed by a court except insofar as specific

investigative demands infringe unreasonably on legally protected

rights of individuals. Cf. In re Petition to Compel Testimony of

Tuso, 73 N.J. 575 (1977) (finding that order for witness to

testify before grand jury was proper-exercise of Attorney

General’s broad authority to investigate and prosecute crimes;

court could not substitute its judgment for the Attorney General

by determining that the State did not need the information or

the testimony sought).

29a

Appendix B

In the course of these proceedings, the State “request[ed]

permission to submit an affidavit, in camera, which [would

state] the reasons for the investigation and establish[] the nexus

between the investigation and the specific questions and

demands made by these investigative interrogatories.” In support

of this request, the State filed an affidavit of a State Police officer

who alleged that he was responsible for and familiar with the

facts surrounding the investigation in connection with which

the interrogatories were served on Doe and Roe. His affidavit

States:

[T]he disclosure of the information upon which this

investigation is based would compromise this

investigation and other investigations into organized

crime, as well as endanger the personal safety of

confidential sources that are presently active in both

this investigation and other investigations into

organized crime. Consequently, it is essential that

this information remain confidential at this point in

time.

No in camera affidavit was submitted. However, in an

apparent change of position, petitioners contended that the

interrogatories should be set aside because they were targets of

a criminal investigation. This argument concedes the existence

of “an investigation.” This is one of the statutory predicates for

the issuance of the interrogatories which petitioners had argued

was missing from the record. Petitioners’ contention that they

are the targets of a criminal investigation obviated the need for

the in camera affidavit to show that such an investigation is in

progress.

Judge Williams properly focused his attention on whether

30a

Appendix B

any of the questions or document demands were unfairly

oppressive because of their breadth, irrelevance to any possible

subject of criminal investigation, or unnecessary intrusiveness

into personal affairs. He held that the questions as ultimately

modified did not suffer from any of these defects, and petitioners’

omission to include the interrogatories in the record on appeal

implies their acquiescence in that conclusion.

The orders appealed from are therefore affirmed.

[stamped]

I hereby certify that the

foregoing is a true

copy of the original

on file in my office

s/ R. Emilie Fox

Clerk

3la

APPENDIX C — OCTOBER 27, 1995

EXCERPTED TRANSCRIPT

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART

ATLANTIC COUNTY

DOCKET NO. ATL-L-3210

A.D. #

TRANSCRIPT OF HEARING

IN THE MATTER OF

INVESTIGATIVE INTERROGATORIES

PROPOUNDED ON * * * AND * * *

SEALED TRANSCRIPT

Place: Atlantic County Civil Court House

1201 Bacharach Blvd.

Atlantic City, NJ 08401

Date: October 27, 1995

BEFORE:

HON. RICHARD J. WILLIAMS, J.S.C.

TRANSCRIPT ORDERED BY:

ANGELO R. BIANCHI, ESQUIRE

APPEARANCES:

THOMAS GOAN, JR., ESQUIRE, Deputy Attorney

General

WILLIAM GICKING, ESQUIRE, Deputy Attorney General

LINDA RENALDI, ESQUIRE, Deputy Attort. » General

Attorneys for the State of New Jersey

ANGELO R. BIANCHI, ESQUIRE

MARK WENCZEL, ESQUIRE

OE IO I ALTE EI OG ETA IE A

Fe ETRE A CES

SAPOSP ES By Th .set

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32a

Appendix C

Attorneys for * * * and * * *

Transcriber Karen Hartmann

J&J COURT TRANSCRIBERS,

INC.

268 Evergreen Avenue

Hamilton, NJ 08619

(609) 586-2311

FAX (609) 587-3599

Audio Recorded

Recording Operator, A. Livit

[2] Colloquy

THE COURT: Thank you. Please be seated. Before I begin

with this matter, I would simply like to first of all identify, not

do it by name, but at least those in the courtroom so I may be

sure that those present in the courtroom are all persons who

have an interest in this matter.

Why don’t I begin by at least asking counsel, even before

you identify yourselves, whether you are satisfied that those in

the courtroom are the only persons who have business being in

the courtroom.

MR. BIANCHI: Yes, sir.

MR. GOAN: Yes. :

THE COURT: Okay. All right, fine. Under the

circumstances then, let me indicate that these proceedings have

been sealed by the Court and will remain sealed until further

33a

Appendix C

order of the Court. This is Docket Number ATL-L-3210-95 in

the matter of the petition to modify or set aside investigative

interrogatories propounded upon * * * and * * *

I'll ask counsel to enter their appearances for the record.

MR. BIANCHI: Angelo R. Bianchi on behalf of the

petitioner, together with Mark Wenzel from my office.

MS. RINALDI: Linda Rinaldi, Deputy Attorney General.

MR. GICKING: William Gicking, Your Honor, Deputy

Attorney General.

MR. GOAN: Thomas Goan, Your Honor, Deputy Attorney

[3] General.

THE COURT: Counselors, in order to give some order to

the proceedings, let me tell you how I would like to proceed.

As I have reviewed the briefs which have been submitted, the

issues raised as I understand them are as follows:

First, in the initial submission by Mr. Bianchi, there were

four issues raised:

The first, an assertion that NJSA 2C:41-5 is

unconstitutional, and that was — term was used in a sense which

I will get clarified in a moment;

Secondly, that the investigative interrogatories are a violation

of Mr. * * * right to be free from unreasonable searches and

seizures pursuant to the Fourth Amendment;

an 2 Sie es

ail

en

34a

Appendix C

Third, that the investigative interrogatories violate Mr. * * *

right to due process of law;

And, fourth, that the investigative interrogatories violate

Mr. * * * right to be free from self-incrimination.

There were subsequent issues raised in reply briefs and

raised in the reply brief was the issue of the investigative

interrogatories being improper if they were directed to a target

of an investigation.

And then there is, last of all, an issue that comes [4] up in

context with both the Fourth Amendment, as well as the statutory

requirements under RICO, basically that the investigative

interrogatories are overbroad, unduly burdensome, and

unreasonably intrusive.

Let me inquire at least at the outset before we get into

argument, Mr. Bianchi, are there — have I correctly identified

the issues that you have raised, or are there others that I have

not identified?

MR. BIANCHI: I believe you have, Your Honor. In relation

to the second submission, it was not a reply brief, it was a

supplemental —

THE COURT: I’m sorry.

MR. BIANCHI: — submission.

THE COURT: I mischaracterized it.

MR. BIANCHI: Then there was a subsequent brief filed

by the Government, by the State. We filed a reply to that. And

then there was another one filed.

© TEP Re eae ‘

35a

Appendix C

THE COURT: Right. I have — yes.

MR. BIANCHI: I believe you’ve covered them all in the

general terms in which they were raised.

THE COURT: All right. The reason I do that is because I

will tell you how I would like — how I would like to proceed

at this point. What I would like to do then is deal with all

issues, at least preliminarily, but the last, that the interrogatories

are overbroad, unduly burdensome, and [5] unreasonably

intrusive. I will come back to that.

In essence what I want to deal with then are the first

unconstitutional claim;

Secondly the assertion that Mr. * * * Fourth Amendment

Rights have been violated;

Third, that Mr. * * * due process rights have been violated;

Fourth, that Mr. * * * Fifth amendment Right to, and

Fourth Amendment — I’m sorry, Fifth and Fourteenth

Amendment Rights, self-incrimination, have been violated:

And then also that the investigative interrogatories are

improper when directed to a target.

So, I'd like — I will hear Mr. Bianchi with regard to those

and then I will hear the state in terms of its response. And I'll

give everyone an opportunity to respond to each other as we

go.

I will hold them until after we have dealt with those issues,

36a

Appendix C

the issue that may take us into specific interrogatories with regard

to overbroad and so on, I’Il come back and deal with that, give

everybody a chance appropriately.

Mr. Bianchi, we’ll hear you first. And the first question I

have to ask you, if I might, and then I will listen to you, with

regard to your first argument that NJSA 2C:41-5 is

unconstitutional, the argument you begin at page 3 of the

original petition, which you have given so that I understand

[6] that, my question to you is, what constitutional provision,

State or Federal, do you assert is violated by these. And separate

and apart from your Fourth and Fifth and Fourteenth

Amendment arguments that you assert in the other things. Insofar

as the first claim that 2C:41-5 is unconstitutional, what

constitutional provisions are you referring to?

Bianchi — Argument

MR. BIANCHI: Your Honor, I’m referring to the Fifth,

Sixth, fourteenth Amendments of the United States constitution

and I guess they all work in. And what Your Honor has

indicated, they fall within the purview, the broad scope of the

purview.

First of all, the question of due process: I submit that the

Statute in question is an extraordinary Statute that permits, in

essence, a governmental body, an investigatory governmental

body, a criminal investigatory and governmental body to, in

essence, have an office subpoena. To go to a citizen and say,

look, you provide me with all this information because I believe

— we think there might be something — you’ve done

something wrong. So, you give us everything that we want

and you respond to those questions without any, I submit, the

37a

Appendix C

protection that would be afforded to an individual who had

been subpoenaed before a grand jury, without the rights and

protection an individual would have in reference to the taking

of his property without due process of law, namely a search

warrant, which would have to have been passed by — made

[7] by a judicial determination as to probable cause.

In essence, what we have here is all of the individual rights

that a person has under our Constitution, in every form, is being

violated. And, Your Honor, there were a number of cases that

were cited and I believe Your Honor — I’m sure Your Honor

has read those cases. And in particular, those cases which

distinguish between what is called an office subpoena and a

grand jury subpoena. And we have the Hilltop case as one of a

number cases that are cited therein.

So, when I say it’s unconstitutional, it is given a power to

the Attorney General that, I submit, violates all of the rights of

an individual that an individual has under both the New Jersey

and United States constitution.

Now, when we look at this —

THE COURT: That’s what I’m trying to find out. I

understand your — I understand — maybe to put it differently.

I’m trying to understand how argument one differs from

arguments two, three or four which you make in your brief.

You’ve drawn a distinction.

MR. BIANCHI: Your Honor, they’re all intertwined.

THE COURT: Well, I know they may be intertwined. But

I assume they’re different because you’ve made a separate

38a

Appendix C

distinction. And in each of the others, you’ve referred to a

specific constitutional provision.

In the first argument that you’ve raised on pages 2 [8] and

3, there is no specific constitutional provision. So, I’m trying

to find what the standard is that I am to look at with respect to

your first argument, what I’ll call the general unconstitutional

argument. I’m not — I’m not sure I understand the nature of

that argument.

You cite Hilltop. But Hilltop didn’t deal with a

constitutional question.

MR. BIANCHI: Let me be more specific there because I

thought Your Honor was restricting me and don’t go into due

process. I say this Statute —

THE COURT: Oh, no, no, no, no. But you’re going to

get — I assume — you've talked about due process, have you

not, under your argument three.

MR. BIANCHI: Yes.

THE COURT: Okay.

MR. BIANCHI: That’s due process of Mr. * * *.

COURT: Right. Okay.

MR. BIANCHI: I am now arguing due process under the

Statute. That this Statute does not give due process to anybody.

THE COURT: All right. And in what respect doesn’t it

give due process?

39a -

Appendix C

MR. BIANCHI: And it does not give due process because

there is no provision for notice of a witness if the Attorney

General wants to petition the Court for an order to [9] compel

compliance with the interrogatories that it serves.

There is no provision for, I respectfully submit, the notice

to the witness that the attorney general is going to petition.

The fact that we’re here today doesn’t change the Statute.

The Statute doesn’t provide a notice. There’s no notice

provision in the Statute. So, hence, the Statute is violative of

due process. And that’s on the scope of the Statute in and of

itself.

And it also violates a witness’ right to privacy and to be

protected from that individual’s proprietary, participatory, or

possessory interest. Any individual.

So, for those reasons, I submit it violates due process.

And another reason I will raise to the Court, while it falls

within the purview of other arguments that I raised, an individual

has a right, who is a target of an investigation, has a right to be

told that he is the target of the investigation.

Here, the only way we’re going to glean that is from facts

and circumstances that are peculiar to this case. But the Statute

does not provide that he is to be so informed, despite the fact

the Legislature, when they had their Committee hearing, and

your Honor is aware they had this hearing and had it transcribed

in order that we’d no longer have any problems, [10] when the

Legislature was considering this Statute, it asked specifically of

40a

Appendix C

the Deputy Attorney General who was handling this, Mr.

Sapienza, who dealt with why this particular process was

constitutional and why it should be permitted, he was asked

this question: Is there any notification up front that this person

is a target. And his answer to the committee was, yes, sir. Well,

I submit it’s not there.

THE COURT: well, now let me ask, does the fact that the

Statute doesn’t provide for notification with regard to target

_ Status, does that make the Statute defective or does it mean

differently? And, quite frankly, I have gone back to reread

Sarcone, which deals with grand jury issues.

MR. BIANCHI: Right.

THE COURT: And it raised an interesting question: Does

it make the Statute unconstitutional, Mr. Bianchi, or does it

mean that if Mr. * * * answers those questions fully, that, in

fact, any indictment that could be returned based upon

answering those questions would be subject to dismissal?

MR. BIANCHI: Well, when I — I’m dealing with the issue

of the Statute, Your Honor.

THE COURT: I understand. But —

| MR. BIANCHI: I am not dealing with the issue of if Mr.

* * * answers those questions —

THE COURT: Right. Well, there is no requirement, is there,

that other than Sarcone, that a person be told they’re a [11]

target before they go before the grand jury. What exists is a

remedy if they’re not told, isn’t that so?

i aaieciiaiieiiaiimicaiiiiaiiaiiiiill

4la

Appendix C

MR. BIANCHI: See, but what I want to bring to the

Court’s attention is I consider this entire proceeding under the

Statute not akin to any other type of proceeding we have. Not

akin to any other judicial proceeding that we have where there’s

a protection by a judge. Not akin to a grand jury proceeding

where there is still protection, despite the fact that the prosecutor

contends, in essence, that they own the grand jury.

THE COURT: Right. Well, how about akin to an Antitrust

proceeding where civil interrogatories are served? I think —

MR. BIANCHI: Well — go ahead.

THE COURT: No, go ahead. Maybe they call them

differently than interrogatories. I think they’re civil — well, it

will come to me. But it’s a little different name, it’s the same

creature.

MR. BIANCHI: Well, as I — as I recall, Your Honor, I

don’t think it’s the same situation, such as this. Because this is

criminal in nature. Antitrust can be civil solely in nature, not

criminal in nature. This Statute provides an extraordinary

remedy for what is called racketeering where people who have

done something maybe 10 or 15 years ago, if they have two

predicate acts over a course of a period of time, [12] you can be

indicted for a very serious crime. That’s completely different

than an Antitrust investigation where you may suffer some

financial penalties.

And, of course, Your Honor is aware when you look

through the proceedings before the Committee, that all of the

representation is by — Mr. Sapienza, the Attorney General, and

also Governor’s counsel, was that in those cases, they’re always

42a

Appendix C

sent to third parties, they’re never sent to targets. They’re sent

to a third party to get some information concerning someone

that something they may suspect is wrong.

But I submit there’s a distinction. There is a distinction

because this has a criminal penalty with a very serious criminal

imprimatur placed upon any violation. So, this is a filius nullius,

if I can use that expression.

THE COURT: You’re welcome to. I don’t understand it,

but you’re welcome to use it.

MR. BIANCHI: Child of no one.

THE COURT: Thank you.

MR. BIANCHI: And as Mr. Kern said, it’s an extremely

hybrid situation. That’s an old Latin term, Your Honor, that we

had law school, as I remember it.

THE COURT: I know, but I’m not an old Latin. Go ahead.

MR. BIANCHI: Well, no, not that I’m an old Latin,

although I am an old Latin, It’s because they had that in law

[13] school, we’ll continue on.

So, there is the distinction, Your Honor. There lies the

distinction. This is an extraordinary situation. And I say that

when you have an extraordinary situation like this, the fact that

if someone is a target, he should be told he’s a target. And if

he’s not told he’s a target, I submit, it violates due process.

43a

Appendix C

And it also, as I said, violates your right of privacy and the

right to be free in his participatory, possessory and proprietary

interests. Here we have a situation where the Government comes

in, the State comes in and says, without any court determination

that there is a probable cause for this, I want all of your

company’s records, which you are the principal, that owe 90

some odd percent of the company, I want all of your records

from the inception of your corporation from 1978 until today.

Now, I know that goes into the question of burdensome,

but I am talking about the intrusion of that and the effect that

has upon the proprietary interest, I submit, are of a constitutional

nature.

THE COURT: You’re arguing that, I assume, under your

Fourth Amendment issue, which is the second one that you’ve

raised.

MR. BIANCHI: Well, yes, Your Honor. But, again, as |

Say, in light of the extraordinary nature of this, I have [14] to

— when you say why is it unconstitutional. The Statute, per

se, is distinguished from the application of the Statute to a

particular individual.

THE COURT: Well, it’s unconstitutional because it violates

some provision of the Constitution, one or more.

MR. BIANCHI: Right.

THE COURT: And my question simply is, for whichever

one or more it focuses on, I’d like to just focus on that one, and

then that one, and then that one. In essence, something — if it

is unconstitutional, there are specific provisions of the

Constitution that it violates. All I want to do is be sure that I

44a

Appendix C

understand your argument as to which the provisions are and

then how you assert that they are violate.

MR. BIANCHI: Well, I gave you the due process violation

and lack of notice. I submit. And I gave you the rights to privacy

situation.

I gave you further , most respectfully, the fact that in light

of this, what we have — what we are doing now, in essence, is

going back in time to, in essence, a star chamber proceeding

where the Government can say or the authority can say, you

give me everything, we’ll look at it and we’ll decide what we’re

going to do with you. Without any judge having to say

anything. Because I submit, they could do that if — because

this Statute doesn’t provide the right to the notice to the witness

if he doesn’t comply.

[15] THE COURT: Now, could they bring these witnesses

before the grand jury and ask them all these same questions?

MR. BIANCHI: They could bring them before the grand

jury, but, again, as an old practitioner under the aegis of

Governor Byrne and Joe Lordi, I know that when we were

there, we had a grand jury that would ask questions. And we

had a grand jury that would stop us. And by the same token,

we had a grand jury that we wouldn’t attempt to abuse what

would occur before them and bring something like this. But

could that happen? Yes. But you have the protection of the

grand jury. You have an intervening body in between the citizen

and the State, just as —

THE COURT: Well, how does the grand jury intervene if

the prosecutor issues the subpoena and the person is directed to

appear before the grand jury with the documents?

rt ee ee %

45a

Appendix C

MR. BIANCHI: He — the grand jury — the documents

have to go to the grand jury. And I submit the grand jury could

say to the prosecutor, we want to look at these before we even

let you look at them. They have that authority and they have

that right. And if we decide that we don’t want to use these,

we're not — because we think they’re personal to this

individual, we’re not going to let you have them. I don’t know

whether that’s ever happened, but I submit the grand jury has

that right.

As a matter of fact, the foreman of the grand jury [16] can

tell the prosecutor to get out of the court — get out of the grand

jury.

THE COURT: Well, let me ask, then, with regard to

everything asked for in these interrogatories, do you

acknowledge then that if the State went before a grand jury and

the grand jury issued this same demand, that your clients would

be obligated to produce all of these matters and answer all of

these questions?

MR. BIANCHI: They would be — no, not required to

answer all the questions. They would —

THE COURT: Well, unless they assume — assumedly they,

let’s say, a Fifth amendment right, but that aside.

MR. BIANCHI: I — but when you say would they have a

right, they would have a right to produce item to the grand

jury.

46a

Appendix C

MR. BIANCHI: There’s no doubt about it. But this isn’t

an office subpoena then. And that is what is dangerous about

the whole situation. And that is what is dangerous about, I

respectfully submit, this provision, that I submit our legislators

were seriously concerned about his constitutionality. And I

know, Your Honor, having heard you before, I’m sure you read

every page and every word in that Committee report. And I’m

sure it’s clear in your mind.

So —

[27] ... standard. It gives them the right to ask a citizen

investigatory interrogatories by — with a mere showing — with

a mere statement that they have suspicion. And I submit that

. doesn’t fall within the purview of the Fourth Amendment. The

Fourth Amendment hangs itself on more than suspicion. It hangs

itself on probable cause, on reasonable grounds to believe that

a crime has been committed, not on suspicion.

And this is, again, the danger and the disease of this

particular Statute. Because the Attorney General says, well, we

believe that you’ve done something wrong. We believe that

you know Fat Harry, Harry the Fish, or whoever in the heck

else they’ve got in these broad interrogatories. And as a result

of that, you have a business and you're making —

THE COURT: I don’t know that’s in there. But don’t

suggest any more names or they might get in there.

MR. BIANCHI: Well, they could get there because I don’t

know who they are, I'm making them up, Judge.

47a

Appendix C

THE COURT: All right. I assumed that.

MR. BIANCHI: But — and you also will note that I did

not give you any names that end in a vowel.

THE COURT: Harry ends in a Y, but go ahead.

MR. BIANCHI: So as I say, Your Honor, that, again,

renders this Statute outside the purview of the Fourth

Amendment and due process under the Fourth Amendment and

the Constitution, paragraph 7, of our New Jersey State .. .

* * *

[54] Rinaldi — Argument

... What authority is there to require somebody to — I can

understand answering and producing documents, what authority

is there to require somebody to appear and furnish testimony in

the Attorney General’s Office?

MS. RINALDI: Well, Your Honor, we would submit that

Section C of the Statute, perhaps, would give us authority to

have someone come and provide testimony. It says, “No

interrogatory shal’ contain any requirement which would be

held to be unreasonable if contained in a subpoena duces tecum

issued in aid of a grand jury investigation.”

It’s not unreasonable to have someone come before a grand

jury and testify.

However, I’m not sure that the — when these interrogatories

— when this investigative interrogatory was served, I don’t

48a

Appendix C

believe it was our intendment to have * * * come and answer

the 291 questions in person.

THE COURT: I understand that. But before the Attorney

General goes out, I mean this is not an every day occurrence, I

assume, issuing investigative interrogatories.

MS. RINALDI: Absolutely not.

THE COURT: My question is, don’t you think that the

Attorney General’s Office ought to be a little more precise and

particular? There’s nothing in the legislative history that suggests

that anybody was ever required to appear before — in the

Attorney General’s office and, in effect, give oral . . .

* * =

[56] . . . their office and give testimony?

MS. RINALDI: I don’t believe it’s been used, no. That’s

the —

MR. GOAN: Judge, if I may, the form’s been used, but

we normally don’t compel appearance. We — our intent is to

get the answers and the material that we need.

THE COURT: Well, a citizen getting this wouldn't know

that. A citizen getting this might not know it at all. I mean

there’s some concern for me as to whether — whether this affects

this case or not is another matter.

But certainly in terms of — if this is the printed document

going out over the signature of the Deputy Attorney General,

i

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a

a

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:

49a

Appendix C

having with it all the authority of the State, the normal ordinary

citizen might very well not know that they don’t have to appear

in an office and give testimony.

The other — the description you gave of the investigation,

which was something to the effect an investigation — furnish

information and testimony deemed necessary in connection with

the enforcement of the New Jersey Racketeering law, said

conduct allegedly consisting of the control and financing of

*** and its owner, *** — *** I’m sorry, I hope I’m

pronouncing it correctly, by organized crime. Is that a violation

of any of the RICO sections?

MS. RINALDI: The nature of that specific . . .

* * *

[62] ... have the Court protect his interests if he thinks the

questions or the document demand is too unreasonable or too

vague or too overbroad or too whatever it is.

So, in the legislative history itself, I highlighted certain

portions, too. And along the way, they keep saying we're going

to counterbalance both sides. There is not going to be a bill

unless we're assured that a person receiving its investigative

interrogatories is protected.

And the Attorney General would submit that going from

the legislative history to the fact that the Statute has been enacted

shows that the concerns that were raised for Constitutional

Rights, abusive — the Attorney General in using these

investigative interrogatories has been satisfied by Sections (b)

through (j) of 41-5.

a’ ara” ae ee De ee eee or ee

50a

Appendix C

In addition, 41-6 also provides some safeguards. 41-6 sets

forth certain sections of Chapter 41, which are to be liberally

construed. 41-5 is not one of them.

However, nowhere in the Chapter, I believe, does it say

41-5 must always be strictly construed. And we would submit

that that is the case because it is very difficult, just as you

pointed out by why does it say in general language here what

the nature of the investigation is. At an early state of

investigation, it is very difficult to precisely say what it is you

need to know.

And if everything had to be strictly construed, . . .

* * *

Sla

APPENDIX D — EXCERPTED TRANSCRIPT OF THE

SUPERIOR COURT OF NEW JERSEY LAW DIVISION,

CIVIL PART, ATLANTIC COUNTY,

DATED FEBRUARY 23, 1996

SUPERIOR COURT OF NEW JERSEY LAW DIV ISION,

CIVIL PART ATLANTIC COUNTY

SMAI gle ibe eM SG MAO Te OD OF

f DOCKET NO. ATL-L-3693-95

AD. #

IN THE MATTER OF

| JOHN DOE and ROE CORPORATION

TRANSCRIPT

OF ORAL ARGUMENT OF

| MOTION OF OBJECTIONS TO

| INVESTIGATIVE INTERROGATORIES

SEALED TRANSCRIPT

Place: Atlantic County Civil Court House

- 1201 Bacharach Blvd.

Atlantic City, NJ 08401

Date: February 23, 1996

_s ere ”

BEFORE:

HON. RICHARD J. WILLIAMS, J.S.C.

TRANSCRIPT ORDERED BY:

ae Saar

ANGELO R. BIANCHI, ESQUIRE

52a

Appendix D

APPEARANCES:

THOMAS GOAN, JR., ESQUIRE, Deputy Attorney

General

WILLIAM GICKING, ESQUIRE, Deputy Attorney

General ;

LINDA RENALDI, ESQUIRE, Deputy Attorney General

Attorneys for the State of New Jersey

ANGELO R. BIANCHI, ESQUIRE

MARK WENCZEL, ESQUIRE

Attorneys for * * *

Transcriber Beatrice A. Creamer

J & J COURT TRANSCRIBERS, INC.

268 Evergreen Avenue

Hamilton, NJ 08619

(609) 586-2311

FAX (609)587-3599

Audio Recorded

Recording Operator, B. Mayer:on

* * *

[44] ... individuals and/or entities to which * ** or any

member of his immediate family is financially indebted. First

of all, immediate family, he says, is not clear orto put it

differently, specific in directive as the case law woul require;

and secondly, that it may be unduly — unduly burdmsome in

that people may be financially indebted to a lot ofdifferent

people. So insofar as the members of his family, I hae no idea

how many members of his — of however you define inmediate

53a

Appendix D

family, however many members he may have and does that

include credit card debts, does that include overdue library

books. I mean, what kind of debts are you talking about?

MR. GOAN: Judge, it includes all debts and the reason

for that is because we don’t know — we don’t know how that

indebtedness may be relevant. Organized crime operates in a

clandestine —

THE COURT: Well, let me stop you right there. If you

can’t tell me how it’s relevant, then please tell me why you’re

entitled to get it?

MR. GOAN: Well, it’s relevant, Judge, because certain of

those debts might be money borrowed to finance and control

the company.

THE COURT: I understand — I understand that. You have

to show something relevant purpose. What my problem is, is

that I understand that you want to know something about

* * *

[140] ... much as it may be involved in his operation of his

company, the direct control and financing of . .. The company

could be financed through loan company — loan sharking. We

don’t know, but it could be.

THE COURT: Yes. But I’m just going to — supposing he

Says, my understanding of the meaning of loan sharking is that

you put-out loans at usurious rates, what’s that do for you?

MR. GOAN: Then he’s answered the question, Judge.

54a

Appendix D

THE COURT: I understand that. He’s answered the

question. How’s it relevant?

MR. GOAN: Judge, I think it’s relevant in as much as he’s

discussing loan sharking at the Pomaboy Social Club. I want to

know what the term loan sharking means to him.

THE COURT: I know. But you keep telling me I want to

know. The fact that you want to know doesn’t make it relevant,

all right. What I want to know from you is how is it relevant?

Let’s assume he answers the question and he says — and he

gives you a nice — in fact, you know, he even goes to the

criminal code and he gives you a verbatim thing that describes

loan sharking. What does — what’s that got to do with — that

kind of a general question got to do with the investigation?

MR. GOAN: Judge, it’s all tied to organized crime.

THE COURT: But tell me the relevance. That’s what I’m

having — I’m struggling. I can understand some of these

* * *

piers

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PEALE LISTS RT IA ERE OTH SET TR NS ASM WEE INT EOE ATOLL EIS SEE

55a

APPENDIX E — ORDER OF THE SUPERIOR COURT

OF NEW JERSEY LAW DIVISION, ATLANTIC COUNTY

FILED MARCH 26, 1996

DEBRA T. PORITZ

ATTORNEY GENERAL OF NEW JERSEY

Attorney for Respondent

State of New Jersey, Division of Criminal Justice

By: William R. Gicking, Deputy Attorney General

Thomas W. Goan, Deputy Attorney General

State of New Jersey, Department of Law and Public Safety

Division of Criminal Justice

25 Market Street, 4th Floor West

CN 085

Trenton, New Jersey 08625

609/984-7595

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION — ATLANTIC COUNTY

DOCKET NO. ATL-L-3693-95

IN THE MATTER OF JOHN DOE

AND ROE CORPORATION

ORDER

THIS MATTER coming before the Court through the

Petition of Angelo R. Bianchi, Esq. for an Order Modifying or

Setting Aside Investigative Interrogatories which were served

upon Petitioners’ John Doe and Roe Corporation, a New Jersey

corporation, under New Jersey’s RICO Statute, N.J.S.A. 2C:41-

1 et. seq., and the Court having considered the matter with

respect to both John Doe and Roe Corporation, and the Court

56a

Appendix E

having stricken certain interrogatories, and certain interrogatories

having been modified, and the State of New Jersey having

withdrawn certain interrogatories, and the Court having

determined that both John Doe and Roe Corporation must

answer the interrogatories as modified and annexed to this Order,

and for good cause shown;

IT IS on this 26th day of MARCH 1996

HEREBY ORDERED that:

1. John Doe shall furnish Answers to the Investigative

Interrogatories annexed hereto fourteen (14) days from the date

this Order is signed.

2. IT IS FURTHER ORDERED that Roe Corporation

shall furnish answers to the investigative interrogatories annexed

hereto within fourteen (14) days from the date this Order is

signed.

3. IT IS FURTHER ORDERED that Roe Corporation

shall make available at is offices located in Bethel, Connecticut

all of the records specified in the Investigative Interrogatories,

Schedule A, annexed hereto, and Roe Corporation will permit

representatives of the State of New Jersey to inspect and copy

the specified records. The records shall be gathered and made

available within fourteen (14) days from the date this Order is

signed and shall remain available until such time as the State

completes its inspection and copying.

4. IT IS FURTHER ORDERED that Roe Corporation

shall permit to State to remove original documents as deemed

necessary by representatives of the State of New Jersey. In the

57a

Appendix E

event the State takes possession of original documents, the State

shall provide the Roe Corporation with a legible photocopy.

5. IT IS FURTHER ORDERED that this matter shall

remain under seal until further order by this Court.

s/ Richard J. Williams

Richard J. Williams, A.J.S.C.

58a

APPENDIX F — EXCERPTED PETITIONERS’

APPELLATE BRIEF DATED SEPTEMBER 9, 1996

IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Docket No. A-4643-95TI

Civil Action

In The Matter of

JOHN DOE and ROE CORPORATION,

Petitioners/Appellants.

On Appeal From:

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION — ATLANTIC COUNTY

Docket No. ATL-L-3693-95

Sat Below:

Honorable Richard J. Williams, A.J.S.C.

BRIEF ON BEHALF OF PETITIONERS /APPELLANTS

JOHN DOE AND ROE CORPORATION

59a

Appendix F

* * *

PROCEDURAL HISTORY

On July 26, 1995, Detective David Grusemeyer of the New

Jersey State Police served upon John Doe and Roe Corporation

(“Doe and Roe” or “Petitioners”) Investigative Interrogatories

returnable September 11, 1995 (Pa 69). The State subsequently

extended the return date until September 18, 1995 (Pa 68).

The State demanded that John Doe and Roe Corporation answer

291 interrogatories and produce all of Roe Corporation’s records

from May 11, 1978 to the present (Pa 71).

On September 12, 1995, John Doe and Roe Corporation

filed a Petition to Modify or Set Aside the Investigative

Interrogatories pursuant to N.J.S.A. 2C:41-5j (Pa 56). On

October 27, 1995, the Honorable Richard J. Williams, A.J.S.C.,

conducted a hearing to consider the Petitioners’ constitutional

challenge to the Investigative Interrogatories (1T)'. By Opinion

dated January 31, 1996 (Pa 24) and Order dated February 13,

1996 (Pa 22), Judge Williams rejected Petitioners’ challenge to

the constitutional and Statutory validity of the Investigative

Interrogatories and ordered the scheduling of further

proceedings to address Petitioners’ claims that the Investigative

Interrogatories were overbroad and unduly burdensome. Said

additional hearings, which were held on February 23, 1996

1. Transcripts are identified as follows:

1T = October 27, 1995 hearing 6T = April 9, 1996 hearing

2T = February 23, 1996 hearing 7T = April 17, 1996 hearing

3T = February 26, 1996 hearing 8T = April 23, 1996 hearing

4T = March 26, 1996 hearing 9T = May 15, 1996 hearing

ST = March 28, 1996 hearing

60a

Appendix F

and February 26, 1996 (1T; 2T), culminated in the Court’s

Order dated March 26, 1996 modifying the interrogatories and

establishing a new return date fourteen (14) days from the date

of the Order (Pa 14).

On April 17, 1996, the State, pursuant to N.J.S.A. 2C:41-

5i, obtained an Order to Compel Answers to Investigative

Interrogatories, ordering John Doe and Roe Corporation to give

the State answers to the Investigative Interrogatories and to make

available for inspection by the State the records of Roe

Corporation (Pa 10).

The Petitioners filed a Notice of Appeal to the Superior

Court, Appellate Division, on April 23, 1996 (Pa 1).

STATEMENT OF FACTS

The State propounded the Investigative Interrogatories upon

Doe and Roe pursuant to the New Jersey Racketeering Statute,

N.J.S.A. 2C:41-1, et seg. The specific authorization to issue

the Investigative Interrogatories is set forth in N.J.S.A. 2C:41-

5. The statute provides in pertinent part:

Investigative Interrogatories

a. Whenever the Attorney General determines that

there exists a reasonable suspicion that any person

or enterprise may have information or be in

possession, custody, or control of any documentary

materials relevant to an investigation under this

chapter, or whenever the Attorney General believes

it to be in the public interest that an investigation be

made pursuant to this chapter, he may, prior to the

Prepaid Sipe ibe Be Ie ihc RO RASS tus Akay BOOMERS a ede RIED

Be ia <8,

6la

Appendix F

institution of a civil or criminal proceeding thereon,

issue in writing, and cause to be served upon the

person, an investigative interrogatory requiring him

to answer and produce material for examination.

b. Each interrogatory shall:

(1) State the nature of the conduct

constituting the alleged violation which

is under investigation and the provision

of law applicable thereto;

(2) Advise the person that he has the right

to discuss the interrogatory with legal

counsel prior to returning it to the

Attorney General or prior to making

material available as provided hereinafter

in subsection f. and that he has the right

to file in Superior Court a petition to

modify or set aside the interrogatory

pursuant to subsection j. hereinafter:

(3) Describe the class or classes of

documentary material to be produced

thereunder with such specificity and

certainty as to permit the material to be

fairly identified;

(4) Prescribe a return date which will

provide a reasonable period of time within

which answers may be made and material

so demanded may be assembled and made

available for inspection and copying or

a

62a

Appendix F

reproduction as provided hereinafter in

subsection f.

c. No interrogatory shall:

(1) Contain any requirement which

would be held to be unreasonable if

contained in a subpoena duces tecum

issued in aid of a grand jury investigation;

or (2) Require the production of any

documentary evidence which would be

otherwise privileged from disclosure if

demanded by a subpoena duces tecum

issued in aid of a grand jury investigation.

—_

* * *

f. Any person upon whom any interrogatory issued

under this section has been duly served which

requires the production of materials shall make the

material available for inspection and copying or

reproduction to the Attorney General at the principal

place of business of that person in the State of New

Jersey or at such other place as the Attorney General

and the person thereafter may agree and prescribe in

writing, on the return date specified in the

interrogatory or on a later date as the Attorney

General may prescribe in writing.

* * *

Any person who shall disclose to any person other

than the Attorney General or a person retained by

bce Lar ORE A cer

ad Ri asin AEN IRAN aE NEE RADI OA RLS ABN Nt 2 Ay naa ede Gh

63a

Appendix F

the Attorney General as set forth above, the name of

any person who receives an investigative

interrogatory or any information obtained pursuant

thereto, except in proceedings involving an alleged

violation of this chapter and except as so directed

by the Attorney General shall be guilty of a crime

of the fourth degree.

i. Whenever any person fails to comply with any

investigative interrogatory duly served upon him

under this section or whenever satisfactory copying

or reproduction of any material cannot be done and

the person refuses to surrender the material, the

Attorney General may file in the Superior Court a

petition for an order of the court for the enforcement

of this section.

j. At any time before the return date specified in the

interrogatory, such person may file in the Superior

Court a petition for an order modifying or setting

aside the interrogatory. The time allowed for

compliance of the interrogatory, in whole or in part

as deemed proper and ordered by the court, shall

not run during the pendency of such petition in the

court. The petition shall specify each ground upon

which the petitioner relies in seeking relief, and may

be based upon any failure of the interrogatory to

comply with the provisions of this section or upon

any constitutional or other legal right or privilege

of the petitioner. In such proceeding the Attorney

General shall establish the existence of an

64a

Appendix F

investigation pursuant to this chapter and the nature

and subject matter of the investigation.

N.J.S.A. 2C:41-5.

Three aspects of the above statute are especially relevant to

this appeal. First, the recipient of an Investigative Interrogatory

may: “[a]t any time before the return date specified in the

interrogatory. . .file in the Superior Court a petition for an order

modifying or setting aside the interrogatory.” N.J.S.A. 2C:41-

5j. Once a petition to modify or set aside an interrogatory is

filed, the time allowed for compliance with the interrogatory is

tolled, and the Attorney General must “establish the existence

of an investigation pursuant to this chapter and the nature and

subject matter of the investigation.” Jd. Second, when a witness

fails to comply with an Investigative Interrogatory, the statute

permits the Attorney General to file in the Superior Court a

petition for an order enforcing N.J.S.A. 2C:41-5. See N.J.S.A.

2C:41-5i. Third, the statute mandates that any investigation

conducted pursuant to N.J.S.A. 2C:41-5 be kept confidential.

N.J.S.A. 2C:41-5f.

In the instant matter, the Investigative Interrogatories were

accompanied by a cover sheet which advised Doe and Roe that

the interrogatories were deemed necessary to the “enforcement

of the New Jersey Racketeering Law N.J.S.A. 2C:41-1 et seq.,”

and were designed to inquire into the suspected “Control and

Financing of [Roe Corporation] and its owner, [John Doe] by

Organized Crime.” (Pa 69). Annexed to the cover sheet were

two sets of 291 questions, many with subparts, to be answered

by John Doe and Roe Corporation (2T, 5) and a document

demand requiring the production of all of Roe Corporation’s

records from May 11, 1978 (the date of its incorporation) to

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DS eS MBE SACD TNT BAYS Lan Bier RY MM ALP Ee

65a

Appendix F

the present (Pa 71). The document demand was unlimited,

requiring the production of every document utilized by Roe

Corporation in the operation of its business.

The Petitioners were given until September 18, 1995 to

provide answers to, and to produce the documents demanded

within, the Investigative Interrogatories (Pa 68). Prior to the

expiration of the time allowed for compliance, the Petitioners

met with the Attorney General’s Office to discuss the State’s

investigation. The parties could not reach agreement and, on

September 12, 1995, the Petitioners filed a petition to modify

or set aside the Investigative Interrogatories pursuant to N.J.S.A.

2C:41-5j (Pa 56). Notwithstanding the express provision of

N.J.S.A. 2C:41-5j, that upon the filing of a petition to modify

or set aside the time allowed for compliance with the

interrogatories shall not run, the State sought to preempt

petitioners’ N.J.S.A. 2C:41-5j petition by filing a petition to

compel answers to the interrogatories pursuant to N.J.S.A.

2C:41-5i on September 13, 1995 (Pa 49). When the State filed

its papers with the Court, it was met at the courthouse by a

reporter from Fox Television. Later in the proceedings, the Court

noted that Assistant Attorney General Michael Bozza had

informed the Court that the reporter previously worked with

the Division of Criminal Justice as a public information officer

(6T 8:7-22).

The Court subsequently dismissed the State’s Petition as

premature (Pa 47).

Doe and Roe’s petition for relief was heard by the Honorable

Richard J. Williams, A.J.S.C. Prior to conducting any hearings

in the matter, Judge Williams sealed the proceedings pursuant

to subsection (f) of N.J.S.A. 2C:41-5 (Pa 16). Notwithstanding

66a

Appendix F

the Court’s sealing order and the protective provisions of

N.J.S.A. 2C:41-5f, the lower court proceedings were not kept

confidential (2T 15). From the start of these proceedings, the

media was apprised of the existence of the investigation and

the identity of the Petitioners. This fact was made irrefutable by

a certain article that appeared in the Philadelphia Inquirer on

March 26, 1996 wherein the existence of the investigation and

the Petitioners’ identities were made public (Pa 79). Petitioners’

counsel made numerous objections to the existence of these

leaks and requested the Court and the State to take the actions

necessary to stop the leaks (2T 8; 4T 4-12). By letter dated

March 26, 1996, the Court noticed the Attorney General of the

breach of the Court’s sealing order and the violation of N.J.S.A.

2C:41-5f (Pa 16). On the same day, however, the Court

accommodated the press by releasing its January 31, 1996

Opinion to the Philadelphia Inquirer (Pa 12). The Court released

its opinion, notwithstanding the vigorous objection of

Petitioners’ counsel (4T 10:11) and the State’s agreement that

“at this point it might be best not to release the Opinion. . .”

(4T 12-20). Despite the leaks and Petitioners’ counsel’s request

that the Attorney General’s office conduct an investigation

pursuant to N.J.S.A. 2C:41-5f, the State took no steps to

investigate the source of the leaks (4T 13; Pa 74). After the

release of the Court’s Opinion, the Philadelphia Inquirer

published another article with additional information that had

been culled from the Opinion, namely, that the purpose of the

investigation was to investigate the alleged control and financing

of Doe and Roe Corporation by organized crime and that Doe

and Roe had argued that they could not be compelled to answer

the State’s questions because they were the targets of the

investigation (Pa 75).

Because of the leaks and the consequent substantial damage

suffered by John Doe and Roe Corporation, and the failure and

67a

Appendix F

refusal of the Attorney General to conduct an investigation into

said leaks, Petitioners did not furnish the State with answers to

the Investigative Interrogatories by the return date set by the

March 26, 1996 Order of the Court. Instead, Doe and Roe

petitioned the Court for the sanction of dismissal of the

Interrogatories based upon: (1) the media leaks; (2) the

irreparable harm suffered by Petitioners as a result; (3) the

Attorney General’s failure to conduct an investigation; (4) the

almost certain additional irreparable harm that would result to

Petitioners by future leaks of the information to be disclosed in

the answers to the interrogatories; (5) the express language of

N.J.S.A. 2C:41-5j providing that the Petitioners may petition

the Court for an order setting aside the Investigative

Interrogatories “based upon any failure of the interrogatory to

comply with the provisions of this section or upon any

constitutional legal right or privilege of the petitioner”; (6) the

fact that at the meeting conducted at the inception of the

investigation, Assistant Attorney General Michael Bozza stated

to Petitioners that he would prefer settling this matter without

going public, as once the information was made public, it would

hurt John Doe and Roe Corporation (6T 7:6-11); and (7) the

fact that when the State filed its premature papers to compel

compliance with the Investigative Interrogatories with Judge

Williams, it was welcomed by a television reporter who, by no

small coincidence, had previously worked with the Division of

Criminal Justice as a public information officer (6T 8:7-22).

By Order dated April 22, 1996, the Court denied

Petitioners the relief requested (Pa 9). The State then petitioned

and received from the Court an Order Compelling Answers to

Investigative Interrogatories, pursuant to N.J.S.A. 2C:41-5i,

on April 17, 1996 (Pa 10). The Court adjudged the April 17,

1996 Order final for purposes of appeal (7T 6:24-7:4). The

68a

Appendix F

State initially accepted the Court’s determination that the order

to compel would be deemed final for purposes of appeal (7T

7:20-24), but subsequently moved the Court to reconsider the

Order’s finality (8T 2). After hearing argument on the State’s

motion, the Court issued supplemental Order dated April 23,

1996, imposing coercive sanctions upon Petitioners and

adjudging said Order final for purposes of appellate review (Pa

77-78).

The final proceeding before Judge Williams occurred on

May 15, 1996. The proceeding was instituted both by the

Petitioners and the State. The Petitioners sought again to have

the interrogatories stricken on the basis of certain newly

discovered evidence which was set forth in the State’s affidavits

to the Appellate Division and Supreme Court in response to the

Petitioners’ applications for a stay of the April 17, 1996 Order

Compelling Answers To Investigative Interrogatories. The

evidence indicated that much of the information purportedly

sought by the State via the Investigative Interrogatories was

already within the State’s possession (9T 11-16). For example,

the State submitted a letter to the Supreme Court in its appendix

that had been written by John Doe on behalf of a Mr. Petrizzio.

In the letter, John Doe states how long he’s known Mr. Petrizzio.

One of the interrogatory questions propounded by the State

asks John Doe whether he knows a Mr. Petrizzio and if so, for

how long he has known him (9T 13:16-24). It was argued by

Petitioners that the State was using the interrogatories for the

improper purpose of manufacturing a false swearing action

against Petitioners (9T 16:5-13). Petitioners argued that the

Investigative Interrogatories were not propounded in accordance

with the intendment of N.J.S.A. 2C:41-5 and, as such, should

have been stricken (9T 19:21-20:1). The Court did not find the

State’s use of the interrogatories to be improper or outside the

intendment of the statute (9T 31:17-33:4).

69a

Appendix F

The State sought to have additional sanctions imposed

against the Petitioners for their failure to answer the

interrogatories but its application was mooted by Petitioners’

assertion of their Fifth Amendment right not to answer same in

view of their status as the target of the investigation (9T 38:22-

44:9).

LEGAL ARGUMENT

POINT I

THE INVESTIGATIVE INTERROGATORIES

PROPOUNDED UPON JOHN DOE AND ROE

CORPORATION PURSUANT TO N.J.S.A.

2C:41-5 VIOLATE DOE AND ROE’S RIGHT

TO A ZONE OF PRIVACY FREE FROM

UNREASONABLE GOVERNMENT

INTRUSION AS GUARANTEED BY THE

FOURTH AND FIFTH AMENDMENTS OF

THE UNITED STATES CONSTITUTION AS

APPLIED TO THE STATES THROUGH THE

FOURTEENTH AMENDMENT, AND

ARTICLE ONE, PARAGRAPH SEVEN OF

THE NEW JERSEY CONSTITUTION.

A. The Trial Court Misinterpreted Legal Principles

Applicable to an N.J.S.A. 2C:41-5 Inquiry and

Erroneously Failed to Exercise its Discretion

This appeal seeks review of the Trial Court’s interpretation

of N.J.S.A. 2C:41-5. Petitioners submit that by finding that

the N.J.S.A. 2C:41-5 Investigative Interrogatories were

propounded upon Doe and Roe in accordance with the

70a

Appendix F

intendment of the statute, that the investigation was not violative

of the constitutional rights asserted by the Petitioners, and that

Petitioners’ should be compelled to comply with the

investigation, the Trial Court misapplied pertinent legal

principles and misinterpreted the original intendment of the

statute. As stated above, the Trial Court compelled compliance

with the Investigative Interrogatories by Order dated April 17,

1996, as supplemented by Supplemental Order dated April 23,

1996. Both Orders resolved all issues pending before the Trial

Court and were correctly adjudged final for purposes of

appellate review. See R. 2:2-3(a)(1) (providing that appeals may

be taken as of right to the Appellate Division from final

judgments of the Superior Court trial divisions). Because an

appellate court is not bound by a trial court’s interpretation of

legal principles, this Court has jurisdiction over this appeal.

See, Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123

(1987)(Trial Court’s imposition of penalties under N.J.S.A.

56:9-10c based on misinterpretation of applicable law must be

reversed); Lombardo v. Hoag, 269 N.J. Super. 36 (App. Div.

1993), cert. denied, 135 N.J. 469 (Appellate Division not bound

by Trial Court’s construction of legal principles).

In addition, the Court erroneously failed to exercise its

discretion to strike the investigation in its entirety, after

Petitioners presented the State with substantial evidence of the

State’s misuse and abuse of the statute. Alk Associates, Inc. v.

Multimodal Applied Systems, Inc., 276 N.J. Super. 310, 647

A. 2d 1359 (App. Div. 1994) (no deference should be accorded

action of trial court where court mistakenly or arbitrarily failed

to exercist its discretion). For the reasons that follow, the Trial

Court misinterpreted the applicable legal principles governing

the Petitioners’ application to modify or set aside the

Investigative Interrogatories pursuant to N.J.S.A. 2C:41-5j and

Ti alana ean

Tla

Appendix F

erroneously failed to exercise its discretion. As such, the Trial

Court must be reversed.

B. The Investigative Interrogatories Propounded Under

N.J.S.A. 2C:41-5 Deprived Petitioners of the Right to

Be Free from Unwarranted Governmental Intrusion.

Implicit in the Fourth and Fifth Amendments is the right to

be free from unwarranted governmental invasions into one’s

private life. See, Griswald v. State of Connecticut, 381 U.S.

479, 484, 85 S. Ct. 1678, 1681 ( 1965). This well-settled right

protects the citizen not merely from the gross physical invasion

of one’s home and private life, but protects one also from being

subjected to unreasonable inspection or investigation, however

conducted. Justice Bradley in Boyd v. United States, 116 U.S.

616, 6 S. Ct. 524 ( 1886) succinctly stated the importance of

this sacred and, increasingly fragile, right. Boyd involved a

provision in the United States Customs Laws which authorized

a Federal Court to require an individual to produce in court his

private books, invoices and papers On motion of a United States

Attorney upon his belief that “any business book, invoice, or

paper belonging to, or under the control of, the defendant or

claimant, will tend to prove any allegation made by the United

States. . .”. Id. at 526, 6 S. Ct. at 620. In finding the statute

repugnant to the first principles of the United States Constitution,

Justice Bradley reiterated the timeless truths of liberty stated by

Lord Camden in Entick y. Carrington, 19 How. St. Tr. 1029

(1765):

“The principles laid down in this opinion affect the

very essence of constitutional liberty and security.

They reach further than the concrete form of the

case then before the court, with its advantitious

72a

Appendix F

circumstances; they apply to all invasions on the part

of the government and its employees of the sanctity

of a man’s home and the privacies of life. It is not

the breaking of his doors, and the rummaging of

his drawers, that constitutes the essence of the

offense; but it is the invasion of his indefeasible

right of personal security, personal liberty, and

private property, where that right has never been

forfeited by his conviction of some public offense.

. . » Breaking into a house and opening boxes and

drawers are circumstances of aggravation; but any

forcible and compulsory extortion of a man’s own

testimony, or of his private papers to be used as

evidence to convict him of crime, or to forfeit his

goods, is within the condemnation of that judgment.

In this regard the Fourth and Fifth Amendments run

almost into each other.”

Id. at 630, 6 S. Ct. at 532 (emphasis added).

In ruling upon the facts of the case before the Boyd Court,

Justice Bradley further emphasized the interrelatedness between

the Fourth and Fifth Amendments as follows:

“ ‘Unreasonable searches and seizures’ condemned

in the Fourth Amendment are almost always made

for the purpose of compelling a man to give evidence

against himself, which in criminal cases is

condemned in the Fifth Amendment; and

compelling a man ‘in a criminal case to be a witness

against himself,’ which is condemned in the Fifth

Amendment, throws light on the question as to what

73a

Appendix F

is an ‘unreasonable search and seizure’ within the

meaning of the Fourth Amendment.”

Id. at 633, 6 S. Ct. 534.

Moreover, as to the disposition of the instant matter, Justice

Bradley presciently stated:

“It may be that it is the obnoxious thing in its mildest

and least repulsive form; but illegitimate and

unconstitutional practices get their first footing

in that way, namely, by silent approaches and

slight deviations from legal modes of procedure.

This can only be obviated by adhering to the rule

that constitutional provisions for the security of

person and property should be liberally

construed. A close and literal construction

deprives them of half their efficacy, and leads to

gradual depreciation of the right, as if it consisted

more in sound than in substance. . . . We have no

doubt that the legislative body is actuated by the

same motives; but the vast accumulation of public

business brought before it sometimes prevents it,

on a first presentation, from noticing objections

which become developed by time and the practical

application of the objectionable law.”

Id. at 635, 6 S. Ct. at 535 (emphasis added).

Drawing from Boyd and its progeny, Justice Douglas, in

writing for the majority in Griswald, stressed that the Fourth

and Fifth Amendments when read in conjunction with the Ninth

Amendment protects the right to privacy, i.e., to be let alone.

74a

Appendix F

Griswald, supra, 381 U.S. at 485, 85 S. Ct. at 1682. The right

to privacy, fundamental to our constitutional form of

government, is older than the Bill of Rights itself. Jd. at 486.

Indeed, at the First Congress on September 25, 1789, James

Madison submitted the Ninth Amendment to make clear that

the Bill of Rights did not fully set forth the rights enjoyed by

the people to be free from governmental intrusion. Id. at 489-

490, 85 S. Ct. at 1684-85 (Goldberg, J. concurring). The Ninth

Amendment was incorporated into the Bill of Rights to

emphasize that the rights enjoyed by the people, some of which

were enumerated in the Bill of Rights, are to be liberally

construed.

Petitioners in the instant matter have no criminal record.

They are thus entitled to the full measure of privacy rights

guaranteed by the United States and New Jersey Constitutions.

For the reasons set forth herein, the Petitioners were denied

their rights to privacy and to be free from unreasonable searches

and seizures.

this case or not is another matter.

But certainly in terms of — if this is the printed

document going out over the signature of the Deputy

Attorney General, having with it all the authority of

the State, the normal ordinary citizen might very

well not know that they don’t have to appear in an

office and give testimony.

(1T 53:23-56:15).

As evidenced by the RICO Act’s liberal construction

provision, N.J.S.A. 2C:41-6, which notably exempts N.J.S.A.

75a

Appendix F

2C:41-5, the legislature intended for a strict construction of

N.J.S.A. 2C:41-5. Fundamental Fairness and due process

mandate a strict construction of N.J.S.A. 2C:41-5. By not

requiring the State to establish the “existence, nature, and subject

matter of the investigation” when disposing of Petitioners’

N.J.S.A. 2C:41-5j petition to modify or set aside the

Investigative Interrogatories, the Trial Court did not strictly

construe the statute and deprived Petitioners of substantive and

procedural due process.

POINT III

THE STATE’S N.J.S.A. 2C:41-5

INVESTIGATION CIRCUMVENTS JOHN

DOE’S CONSTITUTIONAL RIGHT TO BE

HELD ANSWERABLE TO A CRIMINAL

OFFENSE ONLY ON A PRESENTMENT OR

INDICTMENT OF A GRAND JURY.

The Fifth Amendment of the United States Constitution

provides in pertinent part:

“No person shall be held to answer for a Capital, or

otherwise infamous crime, unless on a presentment

or indictment of a grand jury...”

Similarly, the pertinent Provisions set forth in Article 1,

paragraph 8 of the New Jersey Constitution provides:

“No person shall be held to answer for a criminal

offense, unless on the presentment or indictment of

a grand jury. . .”

76a

Appendix F

It is axiomatic that the grand jury must not be captive to

any of the three branches of government for it is an institution

that is older than the constitution itself; the right to be held for

a crime only upon indictment or presentment predates our

constitution. See, United States v. Chanen, 549 F. 2d 1306

(9th Cir. 1977), 434 U.S. 825, 98 S. Ct. 72, 54 L. Ed. 2d 83.

The Fifth Amendment acknowledged the right to a grand jury

but did not relegate it to a position within any of the three

branches of government. The right for a civilian only to be

held for a crime on the presentment or indictment of a grand

jury presupposes that the grand jury will act as an unbiased

investigator independent of the prosecutor or the judge. See,

United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed.

2d 67 (1973); United States v. Hyder, 732 F. 2d 841 (1984);

see, also, United States v. Provenzano, 440 F. Supp. 561 (S.D.

N.Y. 1977).

The mission of the grand jury is a sacred one: i.e., to assure

that those who may be guilty are brought to trial and that those

who are innocent are not. The grand jury is “a cornerstone of

the liberty of the people”; it is a right that has been secured by

the people since the Magna Carta of 1215. Dionisio, supra,

410 U.S. at 27, 93 S. Ct. at 779 (Douglas, J., dissenting). The

grand jury serves as a protective body of peers with no axes to

grind or agency to serve, to stand as a buffer between the

oppressive power of the State and the individual. See, Id. at

28, 93 S. Ct. at 764. It “is the only accusatorial body of the

federal government recognized by the constitution.” Id.; see

also, Hale v. Henkel, 201 U.S. 43, 59, 26 S. Ct. 370, 373, 50

L. Ed. 652 (1906) (“The most valuable function of the grand

jury [is] to stand between the prosecutor and the accused, and

to determine whether the charge was founded upon credible

testimony or was dictated by malice or personal ill will.”).

77a

Appendix F

The grand jury is vested with the authority to investigate.

Subject to constitutional limitations, it possesses the power to

subpoena and interrogate witnesses and to require the production

of documents. Implicit in this power is the duty not to

investigate, interrogate, subpoena when the grand jury finds

there to be an insufficient basis on which to believe that a crime

has been committed.

The authority here given to the Attorney General to conduct

investigations under N.J.S.A. 2C:41-5 of persons reasonably

suspected of having information pertinent to an investigation

violates a citizen’s inalienable right to the protection of the grand

jury. That the evidence acquired by the Attorney General’s Office

would ultimately have to be presented to a grand jury for

indictment does not change this fact.

There is a significant difference between a grand jury

proceeding and an N.J.S.A. 2C:41-5 investigation. A grand

jury stands between the prosecuting arm of the State and the

citizen. The prosecutor must compile and present evidence to

the grand jury for its consideration and the grand jury determines

whether or not to subpoena witnesses. Here, the prosecutor, i.e.

the State, seeks to subpoena the target of an investigation,

commanding him to appear and give testimony to the State,

and to turn over records in which he has a possessory and a

participatory interest for the State to inspect to try to build a

case against the Petitioners. Here, the State proceeds free of the

intervening presence of the grand jury.

N.J.S.A. 2C:41-5 arms the State with a formidable weapon

with which to manipulate and overpower the grand jury in

Carrying out its constitutionally designated role. As employed

in the present investigation, it gives the State too much power

78a

Appendix F

to circumvent the rights of the citizen to the grand jury because,

as demonstrated here under the statute, the State is permitted

the opportunity to exploit the citizen’s respect for the State by

serving Investigative Interrogatories with the imprimatur of the

Attorney General commanding appearance at the Attorney

General’s Office with the information requested merely on the

State’s suspicion that the witness possesses some information

that might be useful to an investigation that the Attorney General

purports to be conducting. Many citizens will no doubt comply

(as above recognized by the Court) without ever challenging

the infringement of their rights. However, as in the instant matter,

even where the validity of the investigation is challenged, the

State can claim that its investigation is based upon information

provided by an informant and that its investigation and the

welfare of the informant will be jeopardized by disclosing the

name thereof. Of course, were the prosecuting arm of the State

required to conduct the investigation subject to the intervening

presence of the grand jury, at least twenty-three individuals,

unbiased and independent from the State, would first have to

evaluate this information for its veracity and relevance. Cf. State

v. Hilltop Private Nursing Home Inc., 177 N.J. Super. 377

(App. Div. 1981) (prosecutor does not have the power to

subpoena an individual to appear before the prosecutor’s office

and cannot prevent the witness from presenting the subpoenaed

materials directly to the grand jury instead of the prosecutor).

Yet, the current investigation was permitted to proceed without

any of the information possessed by the purported informant

being disclosed to the Court or the Petitioners. If, of course,

the State is wrong and no incriminating evidence can be obtained

against the witness, well then the State can decide not to present

the matter to the grand jury. This does little to protect the

arbitrarily subjected witness from the infringement which he

has been forced to endure because of the State’s suspicions.

79a

Appendix F

POINT IV

THE TRIAL COURT’S DENIAL OF

PETITIONERS’ REQUEST THAT THE

INVESTIGATIVE INTERROGATORIES BE

STRICKEN DUE TO THE STATE’S

IMPROPER USE OF THE AUTHORITY

GRANTED UNDER N.J.S.A. 2C:41-5

DEPRIVED PETITIONERS OF THE

PROTECTION OF THE COURT AS

CONTEMPLATED WITHIN THE STATUTE

AND CONSTITUTED AN ABUSE OF

DISCRETION.

On May 15, 1996, Petitioners asked the Court to vacate its

April 17, 1996 ruling because of newly discovered evidence

(9T 6). The evidence was set forth in the State’s papers submitted

to the Appellate Division and Supreme Court in Opposition to

Petitioners’ request for a stay of the Trial Court rulings pending

appeal. The evidence grossly contradicted the position the State

was taking as to its reason for propounding these interrogatories.

The State argued throughout the lower court proceedings

that it was suffering irreparable injury by having Roe

Corporation continuing to act in its Capacity as general

contractor for the New Jersey Sports and Exposition Authority

Atlantic City Convention Center project, and that significant

delays in that project which had resulted were typical of mob

related activities to extort monies from the citizens of New Jersey

(9T 14). However, the State’s certifications to the Appellate

Division and Supreme Court, while on one hand indicating

delay as a “mob” tactic, in its own Affidavit of Thomas

Grusmeyer indicate that John Doe had paid substantial sums of

80a

Appendix F

money in order to avoid labor disputes and thereby gained an

unfair advantage in being able to complete projects with greater

ease. The Grusemeyer Certification demonstrates how the State

contradicted its position to gain an advantage when it suited

their needs without the proper due process requirements of a

showing of proof to support their representations.

During the course of the Trial Court hearings regarding the

relevance and propriety of the questions propounded by the

State, the State represented the interrogatories were served for

investigative gathering purposes based upon possible leads of

illegal activity. To support their position before the Court, it

argued it needed the requested information to determine whether

there was substance to what seemed during the hearings to be

nothing more than rumors and parlor talk from questionable

figures who were shrouded in immunity and self-interest.

Petitioners’ counsel argued that the State’s certifications

submitted to the Appellate Division and Supreme Court

unequivocally demonstrated that John Doe was not only the

target of this proceeding but had been a target of the State for a

significant period of time predating these proceedings. Counsel

argued that the State was attempting to force Doe and Roe to

answer the interrogatories not for investigative purposes, but to

harrass the Petitioners and to lie in wait for the Petitioners to

erroneously answer the questions so that the State could bring

a false swearing action against Petitioners (9T 16:5-13). Counsel

further argued that the State’s certifications demonstrated that

the State had specific first hand investigative information from

Government agents regarding the Petitioners from the State

Police and the Federal Bureau of Investigation (9T 18).

Amazingly most of this information existed and was known

prior to awarding the contract for the Atlantic City Convention

8la

Appendix F

Center and many of the questions the State purportedly sought

to “learn” for investigatory purposes (as per the intendment of

the statute), they already knew, not from infamous and

questionable informants, but from Government investigators,

surveillances, wiretaps, and audio/video intercepts.

Counsel argued that the State was seeking answers to

questions it already knew the answers to, so that it could go

before the grand jury and/or trial jury for the purpose of raising

any inconsistencies in Petitioners’ answers as substantive

evidence of guilt, as opposed to misrecollection, failure to

recollect, or, as all humans are subject to, mistake.

In the end, even if these “inconsistencies” are not used to

indict John Doe for “mob” related activity, they could easily be

used to destroy his reputation, harm him financially, as was

done in this matter, causing Doe and Roe the loss of a multi-

million dollar letter of credit and six million dollar lease (6T

13:6-15:22), support a charge of false swearing, subjecting Doe

to yet further legal harassment, expense, and embarrassment.

How is a Court expected to rule on the relevance of information

sought by the State if the State is allowed to withhold the fact

that it already has that information? The Court erroneously

assumed throughout the proceedings that the State would act

responsibly when given an extraordinary amount of power.

Petitioners demonstrated that the State did not use the power it

was given as intended in the Statute, and the Court’s failure to

co anything about this fact demonstrated that the judicial branch

failed to provide the checks and balances necessary to protect a

citizen from an overreaching government. The Petitioners

specifically cited to the Court the information contained in the

State’s certifications, which demonstrated the State’s abuse of

the statute. For example, the Grusemeyer Affidavit indicated

82a

Appendix F

that John Doe was intercepted at the Palma Boy’s Club speaking

to Anthony Salerno (9T 11). The affidavit also indicated that

John Doe met with an individual known as Liborio “Barney”

Bellomo (9T 11:24-25). The examples went on, but all indicated

that many of the questions asked of Petitioners, the State clearly

had the answers to already (9T 9-18:14).

The inherent power granted by the statute simply reposes

too much unbridled power in the hands of the Attorney General.

That the Court should ask questions in order to determine the

relevancy of the State’s interrogatories, and that the State should

fail to advise the Court that it already had the information sought,

places the judicial branch in a position where it could no longer

meaningly fulfill its judicial obligation under the statute as

drafted. The statute eliminates the constitutional balance of

power that citizens are entitled to. Simply put, it vests unchecked

power in the State in violation of the Separation of Powers

doctrine inherent in the United States Constitution.

The evils of the manner in which the State is using this

Statute is mounting. The State or its agents have leaked

information to the protected press. The Court erred in permitting

the State to still require answers to interrogatories despite the

Court’s knowlege that the State did not give all the information

the Court required to make a meaningful decision as to the

applicability of the Statute, and they should be allowed to

continue under the power granted in that statute to the detriment

of petitioners. This could not possibly be the intendment of the

Statute and it is clearly the kind of abuse the legislature was

concerned about during its passage. The State had the

information they asked John Doe to provide. They should have

used the grand jury process and indicted if they so choose and

not hide behind the statute and use it to hopefully “lay in wait”

83a

Appendix F

in order to gather contradictory information from the target

himself and for no other legitimate purpose.

They were not using the statute properly, and on that basis,

the Court should have vacated its prior order compelling Roe

and Doe to answer the interrogatories.

CONCLUSION

For the foregoing reasons, the Petitioners respectfully

request the Court to reverse the Trial Court Orders dated

February 13, 1996 and April 17, 1996, to adjudge N.J.S.A.

2C:41-5 unconstitutional in violation of the Petitioners’

Fourth and Fifth Amendment rights as guaranteed by the

United States Constitution and Article 1, Paragraph 7 of the

New Jersey Constitution, and to adjudge the Investigative

Interrogatories propounded pursuant to N.J.S.A. 2C:41-5

outside the scope of the statute’s original intendment and the

Court abusing its discretion in not granting Petitioners’ motion

to vacate its previous orders.

Respectfully submitted,

BIANCHI & BIANCHI

Attorneys for Petitioners/Appellants

John Doe and Roe Corporation

By:

ANGELO R. BIANCHI

DATED: September 9, 1996

84a

APPENDIX G — EXCERPTED PETITIONERS’ REPLY

APPELLATE BRIEF DATED NOVEMBER 25, 1996

IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

Docket No. A-4643-95TI

Civil Action

In The Matter

of

JOHN DOE and

ROE CORPORATION,

Petitioners/Appellants.

On Appeal From:

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION - ATLANTIC COUNTY

Docket No. ATL-L-3693-95

Sat Below:

Honorable Richard J. Williams, A.J.S.C.

* * *

85a

Appendix G

REPLY BRIEF AND APPENDIX ON BEHALF OF

PETITIONERS /APPELLANTS

JOHN DOE AND ROE CORPORATION

from William R. Gicking, D.A.G. to Richard J. Williams,

A.J.S.C., wherein the State requested permission to submit an

affidavit stating the reasons for the investigation and

establishing “the nexus between the investigation and the

specific questions and demands made” out of the presence of

Appellants or Appellants’s counsel (Pa 92-93). The Court,

erroneously, never required the State to establish the existence

of an investigation and the nature and subject matter thereof,

but instead scheduled hearings to address the reasonableness of

the demands after issuing its January 31, 1996 Opinion

adjudging the investigation constitutionally and statutorily

proper. The record contains no evidence of the Court ever

requiring the State to establish the existence of an investigation

and the nature and subject matter thereof. (See 1T-3T, passim).

Presumably, the Court was persuaded by Detective

Grusemeyer’s affidavit indicating that the State could not come

forward with this information because the State’s investigation

and the w@fare of the State’s informants would be jeopardized

(Pa 89-91). Indeed, at the February 23 and 26, 1996 hearings,

held to determine the reasonableness of the interrogatories, the

State was never required to establish the existence of an

investigation and the nature and subject matter thereof, other

than by the obvious fact that the State was investigating the

Appellants and was in Court responding to Appellants’s

objections to the reasonableness and relevancy of said

interrogatories. (See 2T, 3T). Clearly, the statutory requirements

here were not met.

acca aaa

86a

Appendix G

N.J.S.A. 2C:41-5b(1) requires that when an interrogatory

is propounded “the nature of the conduct constituting the alleged

violation which is under investigation” be set forth on the

interrogatory. In addition, N.J.S.A. 2C:41-5j requires that when

a petition to modify or set aside the interrogatory is filed that

the State “establish the existence of an investigation pursuant to

this chapter and the nature and subject matter of the

investigation.” Clearly, subsection j imposes an obligation upon

the State, in addition to that set forth in subsection b(1), to

come forward with proof that a valid investigation is being

conducted and to establish the nature and subject matter of the

investigation. The requirement of subsection j is more specific

than the subsection b(1) requirement.

In view of the grave concerns expressed by the legislature

prior to enacting N.J.S.A. 2C:41-5, it is clear that the State was

correct when it stated that the Court had to consider its affidavit

which would establish the reasons for the investigation and

establish the nexus between the investigation and the specific

questions and demands made (Pa 92-93). That an investigation

was being conducted to determine whether John Doe and Roe

Corporation were controlled and financed by organized crime

was obvious from the face of the interrogatory and was

communicated to Appellants under the requirements of N.J.S.A.

2C:41-5b(1). Because the legislature specifically exempted

N.J.S.A. 2C:41-5 from N.J.S.A. 2C:41-6, the liberal

construction provision for the statute, the Court should have

strictly required the satisfaction of the protections afforded

Appellants within N.J.S.A. 2C:41-5. The Court’s failure to make

the State satisfy the requirements of N.J.S.A. 2C:41-5j deprived

Appellants of their right to assure that they were not being

arbitrarily subjected to the expense, harassment and anxiety of

the investigation without good cause.

87a

Appendix G

Moreover, when read together, N.J.S.A. 2C:41-5b(1) and

N.J.S.A. 2C:41-5j are consistent with the legislative history.

The legislature spent a great deal of time in drafting and enacting

this statute. The seeming duplicitousness of subsection b(1) and

the last sentence of subsection j underscores the fact that the

original intendment of N.J.S.A. 2C:41-5 was that it would only

be applied to non-targets. For example, if, as here, “the nature

of the conduct constituting the alleged violation under

investigation” (N.J.S.A. 2C:41-5b[1]) is the control and

financing of the witness by organized crime, then the

requirement of subsection j that the nature and subject matter

of the investigation be established when a petition to modify or

set aside is filed appears wholly redundant. If, however, using

the example given in the legislative history, the interrogatories

were propounded upon a non-target witness, such as a customer

who was paying inordinately high rates for garbage removal,

then the two seemingly redundant provisions become not

redundant at all.

If, as was contemplated in the October 30, 1980 Assembly

Committee Hearing on A1079 (see Sa 99) an investigative

interrogatory would be propounded only upon a non-target,

such as a customer of garbage removal services, then the

customer would be told, pursuant to N.J.S.A. 2C:41-5b(1), that

the nature of the conduct under investigation was anti-

competitive practices in the garbage removal business. If the

customer were then to file a petition to modify or set aside the

interrogatory, under N.J.S.A. 2C:41-5, the State would then

have to come forward with additional information and establish

the existence, nature and subject matter of the investigation.

This would require the State to give the witness additional

information, such as that the garbage removal company which

removes Appellants’ garbage is under investigation for price

88a

Appendix G

fixing and other anti-competitive practices. Significantly,

moreover, in that instance the State would be

89a

APPENDIX H — EXCERPTED PETITIONERS’ BRIEF

IN SUPPORT OF PETITION FOR CERTIFICATION TO

NEW JERSEY SUPREME COURT DATED JULY 21, 1997

SUPREME COURT OF NEW JERSEY

No. 44,535

APPELLATE DIVISION

Docket No. A-4643-95T1

In the Matter of

JOHN DOE

and

ROE CORPORATION,

Petitioners.

BRIEF IN SUPPORT OF

PETITION FOR CERTIFICATION

* * *

STATEMENT OF THE MATTER INVOLVED

This matter involves an investigation, conducted by the

Office of the Attorney General (“Attorney General” or “State”),

under the auspices of the Racketeering Section of the Criminal

Justice Act of 1970 (“RICO Act”), N.J.S.A. 2C:41-1 et seq.

More specifically, it involves the State’s use of N.J.S.A. 2C:41-

5, which delegates to the State the power to propound

investigative interrogatories (“Interrogatories or Interrogatory”’)

upon any person or enterprise whom the State reasonably

90a

Appendix H

suspects has information relevant to an investigation conducted

under the RICO Act.

On July 26, 1995, the Attorney General served upon John

Doe and Roe Corporation (“Doe and Roe” or “Petitioners’”’)

two identical sets of Interrogatories pursuant to N.J.S.A. 2C:41-

5. The Interrogatories consisted of 291 questions, exclusive of

subparts, and a document demand directed at Roe. The questions

and document demand were preceded by a cover sheet

containing the official seal of the State and signed by a deputy

attorney general. The cover sheet “directed” the Petitioners to

appear before the undersigned deputy attorney general on

September 11, 1995 and to produce the documents demanded

and furnish responses to the questions asked. The Petitioners

were further advised that the information requested was “deemed

necessary in connection with the enforcement of the New Jersey

Racketeering Law N.J.S.A. 2C:41-1 et seqg., said conduct

allegedly consisting of the control and financing of [Roe

Corporation] and its owner, [John Doe] by Organized Crime.”

(Pa70). This information was provided pursuant to N.J.S.A.

2C:41-5b(1). N.J.S.A. 2C:41-5b(1) requires the Attorney

General to “[s]tate the nature of the conduct constituting the

alleged violation which is under investigation and the provision

of law which is applicable thereto . . .”” whenever Interrogatories

are propounded under the statute.

The Petitioners challenged the manner in which the State

was using the Interrogatories by filing a petition to modify or

set aside the Interrogatories pursuant to N.J.S.A. 2C:41-5j.

N.J.S.A. 2C:41-5j provides in pertinent part:

At any time before the return date specified in the

interrogatory, [a] person may file in the Superior

9la

Appendix H

Court a petition for an order modifying or setting

aside the interrogatory. . . . The petition shall specify

each ground upon which the petitioner relies in

seeking relief, and may be based upon any failure

of the interrogatory to comply with the provisions

of this section or upon any constitutional or other

legal right or privilege of the petitioner. In such

proceeding the Attorney General shall establish

the existence of an investigation pursuant to this

chapter and the nature and subject matter of the

investigation. (Emphasis added).

The Petitioners asserted that the Attorney General was using

the statute in violation of its original intendment insofar as the

legislature intended N.J.S.A. 2C:41-5 to be used to gather

information from third parties, not from the target of an

investigation. The Petitioners further asserted that N.J.S.A.

2C:41-5 was unconstitutional, i.e., it impermissibly delegated

the investigatory powers of the grand jury to the Attorney

General. In addition, Petitioners argued that the investigation

violated their rights under the Fourth and Fifth Amendments of

the United States Constitution and Article 1 paragraphs 7 & 8

of the New Jersey Constitution. On October 27, 1995, the Court

heard argument from counsel. During argument, Petitioners’

counsel also raised the State’s obligation to establish the

existence, nature and subject matter of the investigation under

N.J.S.A. 2C:41-5j. (1T18; Pa82-88: Pb5)(Pa = Petitioners’

Appendix; Pb = Petitioners’ Appellate Brief; Sa = State’s

Appendix).

Shortly after this hearing and before the Court issued its

opinion regarding the constitutionality of the statute, the

Attorney General advised the Court that she believed it was

92a

Appendix H

necessary for the Court to be apprised of the basis for the

investigation prior to ruling on the arguments made by the

Petitioners. The State believed that the Court had to be made

aware of the underlying facts on which the Interrogatories were

based in order to rule upon the propriety of the Interrogatories

and requested the Court’s permission to file an ex parte affidavit

for an in camera review by the Court (Pa92) on the basis that

the decision to propound the Interrogatories was premised upon

information provided by a confidential informant. (Pa89). The

Petitioners agreed that this information had to be provided to

the Court but objected to its presentation via ex parte affidavit.

Notwithstanding the State’s recognition of its statutory obligation

to establish the nature and subject matter of the investigation, the Court

did not consider the State’s affidavit and did not require compliance

with the strict dictates of N.J.S.A. 2C:41-5j. Instead, on January 31,

1996, the Trial Court issued an Opinion adjudging the State’s use of

N.J.S.A. 2C:41-5 io be within the original intendment of the statute

and finding the statute not violative of the Petitioner’s constitutional

rights. (Pa24).

The Trial Court then scheduled hearings to consider the

Petitioners’ assertion that the Interrogatories were unduly broad

and burdensome, i.e., that they were not relevant to the stated

purpose of the investigation, limited in scope, and specific in

directive. At these hearings, the Court still did not require the

State to establish the existence, nature and substance of the

investigation but, apparently, considered the relevance, scope,

and specificity of each Interrogatory against the stated nature of

conduct under investigation, i.e., the control and financing of

Doe and Roe by organized crime, which was specified on the

Interrogatory cover sheet pursuant to the explanatory provision

of N.J.S.A. 2C:41-5b(1). Throughout these proceedings, the

93a

Appendix H

reason given by the State to justify the Interrogatories was that

the State was in possession of information to indicate that Roe

is a “mob company”, whatever that means and whatever law

that violates is unknown (2T44,49). This was the only

explanation ever given by the State to purportedly establish the

existence, nature, and subject matter of the investigation as

required by N.J.S.A. 2C:41-5.

Apparently accepting the State’s explanation at face value,

the Court evaluated the relevance, scope, and specificity of each

Interrogatory and primarily accepted as sufficient the State’s

assertion that (1) the questions asked and documents demanded

were necessary to determine if the State’s information was

accurate, and (2) that there really was no way to justify the

relevance of any particular request until after the information

was received. (1T62:22-24; 2T44:13-24; 2T140:12-25). On

March 26, 1996, the Court ordered the Petitioners to answer

the Interrogatories, as partially modified-by the Court, and to

make all of Roe’s corporate and financial records (from 1978

to the present) available for inspection. (Pal4; Sal).

During the Trial Court proceedings there were various media

leaks regarding the Petitioners’ identity and the fact that

Interrogatories were served upon them. These leaks were in

violation of N.J.S.A. 2C:41-5f and the Trial Court’s sealing

order. The Petitioners asked the Court to strike the Interrogatories

in view of the near certainty that the leaks originated from the

State and the Attorney General’s failure to afford Petitioners

the confidentiality mandated by the statute. In fact, the Court

indicated during oral argument that it was probably no small

coincidence that a reporter who showed up at the Courthouse,

nearly simultaneously with the State’s filing of a premature

petition to compel answers to the Interrogatories, had previously

94a

Appendix H

worked for the Attorney General as a public information officer

(2T14-15). The Court refused to afford the Petitioners any relief,

but notified the State of the apparent violation of N.J.S.A. 2C:41-

5f. The Attorney General decided not to investigate the matter.

On appeal, the Petitioner’s challenged the Trial Court rulings,

asserting the same arguments that were raised before the Trial

Court. Among other things, the Petitioners argued that the Trial

Court’s failure to strictly require the State to establish the

existence, nature and subject matter of the investigation, pursuant

to N.J.S.A. 2C:41-5j deprived Petitioners of their statutory and

constitutional rights. The Petitioners asserted also that the Trial

Court failed to exercise its discretion to strike the Interrogatories

in view of the uncontrolled media leaks, the demonstrated harm

caused to the Petitioners as a result thereof, and the wholly

illusory nature of the protection purportedly afforded the

Petitioners by N.J.S.A. 2C:41-5f. (Pb69-10, 13; Pa617). It was

further argued, among other things, that the Court should have

stricken the Interrogatories because of the demonstrated abusive

purpose on which they were based.

The Appellate Division affirmed the Trial Court’s holdings,

among other reasons, on the basis that the statutory predicate

requiring the State to establish the existence, nature and subject

matter of the investigation was obviated by the Petitioners’

contention that they were the targets of “a” criminal

investigation. The Appellate Division failed to rule upon the

Petitioners’ fourth argument of their brief, that the State abused

the process of N.J.S.A. 2C:41-5 by purportedly seeking

information with the Interrogatories that the State already

possessed. For the following reasons and the reasons set forth

in the Petitioners’ Appellate briefs submitted herewith, Doe and

Roe now petition this Court to hear their appeal.

95a

Appendix H

QUESTIONS PRESENTED

1. Whether a petitioner’s contention in a proceeding

conducted pursuant to N.J.S.A. 2C:41-5j that he is the target of

Interrogatories propounded under the authority delegated to the

Attorney General pursuant to N.J.S.A. 2C:41-5 obviates the

need for the Court to verify the existence, nature, and subject

matter of the investigation as required by N.J.S.A. 2C:41-5j.

2. Whether Courts should strictly construe N.J.S.A. 2C:41-

5 in view of the fact that the legislature specifically excluded

this provision from the New Jersey Rico Act’s liberal

construction provision set forth in N.J.S.A. 2C:41-6 and the

fact that N.J.S.A. 2C:41-5 enables the Attorney General to

exercise the subpoena powers constitutionally reserved for the

grand jury.

3. Whether the original intendment of N.J.S.A. 2C:41-5

was that it would be used only against non-target third parties

as an efficient method for gathering information to be used

against the target of a criminal investigation.

4. Whether propounding Interrogatories under N.J.S.A.

2C:41-5 to obtain information already within the possession of

the Attorney General is an improper use of the statute.

5. Whether in view of the State’s having leaked to the press

the substance and nature of the Interrogatories and the

Petitioners’ identities in violation of N.J.S.A. 2C:41-5f, the

Court should have stricken the Interrogatories.

96a

Appendix H

ERRORS COMPLAINED OF

POINT ONE

THE APPELLATE DIVISION IMPROPERLY

DETERMINED THAT THE PETITIONERS’

CONTENTION THAT THEY WERE TARGETS OF THE

INVESTIGATIVE INTERROGATORIES OBVIATED

THE NEED FOR THE ATTORNEY GENERAL TO

ESTABLISH THE EXISTENCE, NATURE, AND

SUBJECT MATTER OF THE INVESTIGATION.

In its opinion, the Trial Court concluded that New Jersey’s

RICO Act requires courts to use the same standard of review in

passing upon the validity of Interrogatories as is used when

evaluating what information may be demanded pursuant to a

grand jury subpoena. The Court further concluded that the

analysis for reviewing grand jury subpoenas is the same as that

which a court must conduct when reviewing administrative

subpoenas. (Pa32).

As stated by the Trial Court, although an agency need not

show probable cause to issue an administrative subpoena, an

agency must demonstrate that the purpose of its inquiry is

legitimate under the statute, “that the inquiry is relevant to that

purpose, and that the required administrative steps have been

duly followed.” (Pa 32). The case of United States v. Powell,

379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112 (1964), which

the Court cited for the above standard, held that when an

administrative subpoena is challenged the investigating agency

must show: “[1] that the investigation will be conducted

pursuant to a legitimate purpose, [2] that the inquiry may be

relevant to that purpose, [3] that the information sought is not

already within the [investigating agency’s] possession, and [4]

97a

Appendix H

that the administrative steps required by the [enabling

legislation] have been followed. . .” Id. at 57-58, 85 S. Ct. at

255, 13 L. Ed. 2d 112. (Emphasis added).

In the case at bar, the legislature attempted to assure the

satisfaction of the Powell requirements by imposing a disclosure

requirement upon the State in N.J.S.A. 2C:41-5j. This

requirement clearly requires more than merely stating “the nature

of the conduct which is under investigation” N.J.S.A. 2C:41-

5b(1). Notwithstanding the State’s recognition of its obligation

to come forward with the information required by N.J.S.A.

2C:41-5j, the Court never made the State produce this

information and thus failed to afford the Petitioners the statutory

and constitutional protections to which they were entitled.

The Appellate Division decision, affirming the Trial Court’s

failure to enforce the disclosure requirement, is based upon an

inaccurate reading of the record. Moreover, the holding’s

rationale is erroneous. It absolves the State and lower Courts of

their statutory and constitutional responsibility to strictly comply

with the express dictates of the statute whenever the recipient

of Interrogatories asserts that the Interrogatories are being used

improperly to target him for indictment.

‘That the Petitioners were being investigated was obvious

by virtue of their having been directed to respond to the

Interrogatories and to respond to the production of a document

demand requiring Roe to produce each and every document

maintained by the corporation from the date of its incorporation

in 1978 until the present day'. Given the nature of the questions

1. Significantly, at the Assembly Committee hearing held in

1980 to discuss the drafting and enactment of N.J.S.A. 2C:41-5, the

Attorney General’s Office and Counsel to the Governor assured the

(Cont’d)

98a

Appendix H

asked, the unrestricted sweep of the document demand (Sal),

and the tone and substance of a meeting that was held between

the Attorney General’s Deputy Director, Michael Bozza, and

the Petitioners the day before the State filed its premature motion

to compel answers (6T7) the Petitioners argued that the statute

was being used improperly as they were being targeted with

the Interrogatories in contravention of the statute’s original

intendment.

The only way for the Trial Court to have satisfied itself

would have been for the Court to have required the State to

establish the existence, nature, and subject matter of the

investigation. The State’s request to submit an affidavit to the

Court for in camera review may have been a way for the Court

to have satisfied N.J.S.A. 2C:41-5j’s statutory predicate in

accordance with the Powell standard. It may have been sufficient

(Cont'd)

Committee repeatedly that if given the power to propound

Interrogatories, the Attorney General’s Office would, for the most

part, just use them to tap non-target third party witnesses on the

shoulder to obtain information in connection with the investigation

of a target so that the State could more efficiently gather evidence

in pursuit of an investigation with the least inconvenience to the

non-target witness as possible. That, as here, they would be used to

seat an 800 pound gorilla in the lap of a targeted witness clearly was

not the intent or purpose for the statute (See Pa94). For the reasons

set forth herein, the State’s current use constitutes a misuse of the

statute in contravention of the legislative intent and the Petitioners’

Statutory and constitutional rights. To let the Appellate Division

decision stand will countenance future violations of the statute and

sanction the infringement of citizens’ liberty interests as an

emboldened Attorney General’s Office expands its use of the statute

beyond its enacted parameters and witnesses fail to question these

practices in view of the unrestrained lower Court rulings.

99a

Appendix H

for the Court’ to determine whether there was a good faith basis

for the investigation. At this point, however, one can only

speculate.

The Trial and Appellate Courts clearly shirked their

obligation to assure the strict interpretation of N.J.S.A. 2C:41-

5 which the legislature intended. See N.J.S.A. 2C:41-6

(exempting N.J.S.A. 2C:41-5 from the New Jersey RICO Act's

liberal construction provision). The conclusory manner in which

the Appellate Division addressed this issue in its opinion

evidences a cavalier attitude to assuring the protections of the

Statute and demonstrates clearly why the legislature exempted

N.J.S.A. 2C:41-5 from the RICO Act’s liberal construction

provision. In effect, and notwithstanding the dictates of the

Powell standard, the Trial and Appellate Courts here construed

the N.J.S.A. 2C:41-5j disclosure requirement as if it were

irrelevant surplusage, a mere redundancy of the explanatory

predicate set forth in N.J.S.A. 2C:41-5b(1).

The Appellate Division affirmed the Trial Court on the basis

that the Petitioners’ contended that they were targets of “a”

criminal investigation and, in so doing, obviated the need for

the Trial Court to consider the Attorney General’s affidavit or

otherwise insist upon compliance with N.J.S.A. 2C:41-5j. The

2. It is also quite possible that an insufficient basis or bad faith

may have been uncovered. When the Interrogatories were propounded

upon Doe and Roe, Roe was under contract with the New Jersey

Sports and Exposition Authority (“NJSEA”) for the construction of

the Atlantic City Convention Center. At or about this time, Roe and

the NJSEA were embroiled in a dispute over interpretations of the

contract and over certain work scheduling issues (2T12). One can

only wonder if the State’s confidential informants were affiliated

with the NJSEA and/or if the State could nave had any motive for

conspiring with the NJSEA to put pressure on the Petitioners.

100a

Appendix H

Appellate Division stated that the Petitioner’s contention that

they were targets of “a” criminal investigation represented “an

apparent change of position”.

The Petitioners never maintained that they were the targets

of “a” criminal investigation. Petitioners consistently asserted

that they were targets of “the” N.J.S.A. 2C:41-5 investigation.

(1T5,48). However, the Petitioners were never apprised of the

existence of “a” criminal investigation or the basis for “the”

N.J.S.A. 2C:41-5 investigation. Nothing in the record, absolutely

nothing, supports or justifies the Appellate Court’s

mischaracterization of the Trial Court proceedings.

The standard fashioned by the Appellate Court that once a

witness contends that he is the target of the Interrogatories the

State no longer has to satisfy the statutory and Powell

requirements cannot stand. Significantly, N.J.S.A. 2C:41-5j does

not merely allow the witness to ask the State to disclose the

existence, nature, and subject matter of a RICO investigation. It

does not leave it to the Court’s discretion. The statute mandates

disclosure once a petition to modify or set aside is filed.

Moreover, disclosure is not made contingent upon a witness’s

target status. Similarly, the Powell disclosure requirements are

not contingent upon a witness’s target status. Yet, the Appellate

Division here, in effect, reads the disclosure provision of

N.J.S.A. 2C:41-5j as if it were somehow dependent on whether

the witness has been notified or believes himself to be a target.

This interpretation is clearly wrong.

Whether a witness is notified of his target status is wholly

unrelated to the Court’s obligation to verify the legitimacy of

the investigation once challenged. The only way for the Court

to do this is by requiring the Attorney General to disclose the

10la

Appendix H

factual basis and scope of the investigation. See id.; see also

United States v. Cortese, 614 F.2d 914 (3rd Cir. 1980) (IRS

Commissioner permitted to establish Powell criteria via in

camera affidavit).

The Court’s failure to view this information fatally taints

these proceedings.

POINT TWO

THE APPELLATE DIVISION IMPROPERLY AFFIRMED

THE TRIAL COURT’S DECISION FINDING THAT

INVESTIGATIVE INTERROGATORIES MAY BE

PROPOUNDED UPON TARGETS.

A review of the legislative history provided to the Trial

and Appellate Courts establishes convincingly that the original

intendment of N.J.S.A. 2C:41-5 was that it would not be used

against targets of investigations’. The legislature was misled

into enacting the statute as drafted by the repeated assurances

of the Attorney General’s Office and the Counsel for the

Governor that

2 * *

Supreme Court, Certification should be granted. The issues

presented in this appeal arise out of ambiguous and unclear

provisions of N.J.S.A. 2C:41-5. Because of the dearth of case

3. The Petitioners’ appendix included excerpted portions of the

transcript of the October 30, 1980 Assembly Judiciary, Law, Public

Safety and Defense Committee meeting which addressed in great

detail the intended purpose and scope of N.J.S.A. 2C:41-5. The

Respondent's appendix included the entire transcript.

a

102a

Appendix H

law in this State interpreting the statute, the Trial Court had to

improvise its holding from (1) the law in this State on grand

jury investigations, and (2) the United States Supreme Court

decisions with respect to administrative subpoenas. As set forth

above, the Petitioners submit that the Trial Court failed to exercise

the powers available to it in considering their challenge to the

Interrogatories. The Trial Court failed, moreover, to enforce

the statutory disclosure requirements which were clearly derived

from Powell. It is submitted that the Trial Court failed to

adequately protect the Petitioners’ rights in this proceeding

because of the statutory ambiguities and the absence of any

clear directive from this Court on the manner in which this

statute should be interpreted and applied. It is further respectfully

submitted that the ambiguities of N.J.S.A. 2C:41-5, as made

manifest in this proceeding, cry out for clarification by this

Court.

For the foregoing reasons, the petitioners, John Doe and

Roe Corporation, respectfully request that their Petition for

Certification be granted. -

Respectfully submitted,

BIANCHI & BIANCHI

Attorneys for Petitioners

By:

MARK A. WENCZEL

103a

APPENDIX I — NEW JERSEY SUPREME COURT

DENIAL ON PETITION FOR CERTIFICATION

DATED SEPTEMBER 16, 1997

SUPREME COURT OF NEW JERSEY

C-134 September Term 1997

44,535

IN THE MATTER OF JOHN DOE

and ROE CORPORATION

(JOHN DOE and ROE CORPORATION — Petitioners)

ON PETITION FOR CERTIFICATION

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-4643-95

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is denied,

with costs.

WITNESS, the Honorable Alan B. Handler, Presiding

Justice, at Trenton, this 16th day of September, 1997.

s/ Stephen Townsend

CLERK OF THE SUPREME COURT

I hereby certify that the foregoing is a true copy of the original

on file in my office.

s/ Stephen Townsend

CLERK OF THE SUPREME COURT OF NEW JERSEY

ae

104a

APPENDIX J — AFFIDAVIT DATED JANUARY 3, 1996

AND LETTER DATED NOVEMBER 16, 1995 IN

SUPPORT OF THE STATE’S APPLICATION TO SUBMIT

AN IN CAMERA AFFIDAVIT ESTABLISHING THE

REASONS FOR THE INVESTIGATION

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION — ATLANTIC COUNTY

IN THE MATTER OF THE INVESTIGATIVE

INTERROGATORIES PROPOUNDED

wu °° Rw?

CIVIL ACTION

AFFIDAVIT IN SUPPORT OF THE STATE’S APPLICATION

TO SUBMIT, IN CAMERA, WITH ACCESS DENIED TO

*** AND COUNSEL ANGELO BIANCHI, ESQ. AN

AFFIDAVIT ESTABLISHING THE REASONS FOR THIS

INVESTIGATION AS WELL AS THE REASON FOR THE

SPECIFIC QUESTIONS WHICH MAKE UP THESE

INVESTIGATIVE INTERROGATORIES

STATE OF NEW JERSEY J ss:

COUNTY OF MERCER

DETECTIVE SERGEANT FIRST CLASS DAVID

GRUSEMEYER, Badge #2952, of full age, having been duly

sworn by oath, according to law, depose and say:

1. I am a Detective Sergeant with the New Jersey State

Police currently assigned as the Assistant Supervisor of the

Casino Intelligence Unit. In such capacity, I am currently

responsible for the investigation involving the serving of

105a

Appendix J

Investigative Interrogatories upon * * * As such, I am fully

familiar with the facts surrounding this investigation.

2. I have been a member of the New Jersey State Police

for the last twenty-one years. Pursuant to my official duties, I

have conducted hundreds of investigations into organized crime.

These investigations have included the offenses of gambling,

extortion, murder, racketeering, as well as identifying and

investigating organized crime infiltration into the construction

industry. I have prepared affidavits for search warrants and

interviewed informants and defendants who were familiar with

the above-noted crimes. I have attended various New Jersey

State Police Schools, including the Criminal Investigations

School, various narcotic investigations schools, the Organized

Crime School, and the Casino Investigations School.

3. From my education, training, and experience, I am

familiar with the manner in which members of organized crime

attempt to infiltrate and/or control the construction industry. I

am also familiar with the manner in which members of organized

crime deal with individuals who provide information to law

enforcement regarding organized crime activities. It is well-

documented and undisputed that those individuals that are

discovered by members of organized crime to be cooperating

with law enforcement are dealt with harshly by organized crime.

Such individuals have frequently been murdered both in reprisal

for their cooperation and to assure that they are unable to further

cooperate with law enforcement. Consequently, it is clear that

if any confidential sources involved in this investigation are

identified by organized crime, their lives will be in danger.

4. In addition, I know from my training and experience

that revealing the specific facts and details known to law

106a

Appendix J

enforcement agencies regarding this investigation will severely

compromise its viability and integrity.

5. In conclusion, the disclosure of the information upon

which this investigation is based would compromise this

investigation and other investigations into organized crime, as

well as endanger the personal safety of confidential sources that

are presently active in both this investigation and other

investigations into organized crime. Consequently, it is essential

that this information remain confidential at this point in time.

In fact, I am unable to supply more specific information in this

Affidavit due to my concerns regarding jeopardizing this

investigation, other investigations, and the potential safety of

sources.

s/ David Grusemeyer

DAVID GRUSEMEYER

Sworn to and subscribed before me

this 3rd day of January 1996.

s/ William R. Gicking

Attorney-at-Law

State of New Jersey

107a

Appendix J

STATE OF NEW JERSEY

DEPARTMENT OF LAW OF PUBLIC SAFETY

DIVISION OF CRIMINAL JUSTICE

25 MARKET STREET

CN 085

TRENTON, NJ 08625-0085

TELEPHONE: (609)984-6500

DEBORAH T. PORITZ TERENCE P. FARLEY

ATTORNEY GENERAL DIRECTOR

November 16, 1995

Honorable Richard J. Williams, A.J.S.C.

Court House

1201 Bacharach Boulevard

Atlantic City, New Jersey 08401

PERSONAL AND CONFIDENTIAL

Re: In the Matter of Investigative Interrogatories

Propounded Upon... and...

Dear Judge Williams:

Your Honor had requested that both the State and Mr.

Bianchi submit prospective dates for scheduling the continuation

of oral argument regarding the above captioned matter. The

State is available for continuation of oral argument on any date

after November 27, 1995. We request that the matter be

scheduled as soon as possible. However, it is the State’s position

that certain preliminary issues should be resolved prior to the

continuation of oral argument.

108a

Appendix J

At the conclusion of the prior oral argument, Mr. Bianchi

indicated that he intended to submit additional papers to the

Court. To date, the State has not received any additional

submissions from Mr. Bianchi. With respect to the remaining

issue to be argued, whether the interrogatories are unduly

burdensome, Mr. Bianchi has provided no specifics regarding

which questions or document demands he submits are unduly

burdensome. It is respectfully submitted that Mr. Bianchi should

specify any particular questions which he objects to beyond

the general blanket assertion that the entire set of interrogatories

is unduly burdensome. The State can than be in a position to

set forth the information available to the State which justifies

the particular questions to which Mr. Bianchi objects.

It is respectfully submitted that Your Honor must be made

aware of the underlying facts which form the basis for the

Investigative Interrogatories in order to determine whether the

interrogatories are proper.

Therefore, the State requests permission to submit an

affidavit, in camera, which states the reasons for the investigation

and established the nexus between the investigation and the

specific questions and demands made by these investigative

interrogatories. At this point, the State must not be required to

disclose this information to Mr. Bia

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