United States District Court, S.D. California
August 25, 2005.
IN RE GRAND JURY PROCEEDINGS (WITNESS NICOLE FINK).
The opinion of the court was delivered by: IRMA GONZALEZ, District Judge
ORDER HOLDING NICOLE FINK IN CONTEMPT FOR HER REFUSAL TO TESTIFY
BEFORE GRAND JURY AND DENYING HER MOTION FOR BAIL PENDING APPEAL
This matter came on for a hearing on August 23, 2005 before the
Honorable Chief Judge Irma E. Gonzalez on the government's motion
to hold witness Nicole Fink in civil contempt for her refusal to
testify before the grand jury. Nicole Fink was present along with
her counsel David Zugman. John Parmley and Stephen Cook appeared
on behalf of the government. Following a hearing, for the reasons
set forth below and further stated on the record, Fink was found
in contempt and ordered remanded to custody immediately.
Fink was duly subpoenaed to give testimony before the grand
jury with regard to a legitimate criminal investigation into an
arson which occurred within the Southern District of California
on August 1, 2003. Anticipating that Fink would assert her
privilege under the Fifth Amendment, the government granted her
immunity pursuant to 18 U.S.C. § 6001 et seq. Based thereon,
the Court ordered Fink to testify before the grand jury pursuant
to 18 U.S.C. § 6002. Fink appeared before the grand jury on August 2, 2005 and refused
to testify, asserting that the grand jury's questions infringed
upon her First Amendment right to association.*fn1 The Court
held a hearing on August 9, 2005 regarding Fink's assertion of
privilege and set a schedule to allow Fink's counsel to brief the
First Amendment issues.
Following briefing on the issues, the Court held another
hearing on August 17, 2005. Fink was represented by counsel. Fink
again asserted that the grand jury's questions infringed upon her
First Amendment right of association. Fink argued that the grand
jury's inquiry was not for any proper purpose, but instead was
designed to harass and intimidate her and chill her rights of
free association. The Court found that Fink's assertion of a
First Amendment privilege was without merit and ordered her to
appear and testify before the grand jury on August 23, 2005. Fink
appeared before the grand jury at 9:00 a.m. on August 23, 2005,
and again refused to testify based upon her claimed First
A hearing was convened at 12:00 p.m. that same day for purposes
of determining whether Fink should be held in contempt and
remanded to custody. Fink was represented by counsel. Having
previously found Fink's assertion of privilege to be without
merit, the Court found Fink had refused, without just cause, to
testify and therefore was in contempt. The Court denied Fink's
request for bail pending appeal, and Fink was immediately
remanded into custody.
FINDINGS OF FACT*fn2
Fink possesses a sincere and firmly-held belief that her
proposed testimony before the grand jury would infringe upon her
association rights under the First Amendment.
In the early morning hours of August 1, 2003, a condominium
development project in San Diego was destroyed by arson. A banner
was left behind at the scene claiming that the Earth Liberation
Front ("ELF"), an underground environmental activist
organization, was responsible for the fire. On the evening of
August 1, 2003, Fink attended a lecture by controversial activist
Rod Coronado. The government has reason to believe that during
the lecture, Mr. Coronado talked about and demonstrated how to make an incendiary device.
Other witnesses called before this grand jury have alleged
specific incidents of harassment at the hands of law enforcement.
Fink does not allege that she has been harassed by law
enforcement, save for the instant grand jury subpoena, which she
views as harassment.
CONCLUSIONS OF LAW*fn3
A witness who, without just cause, refuses to testify in
compliance with a grand jury subpoena may be held in civil
contempt, and thereafter incarcerated until such time as he or
she complies with the Court's order. 28 U.S.C. § 1826(a); In re
Grand Jury Proceedings (Chesnoff), 14 F.3d 1293, 1295 (9th Cir.
1993). Fink asserts that she is justified in refusing to testify
because the grand jury's inquiry is for the improper purpose of
harassment and intimidation and that the questions posed would
infringe upon her First Amendment right of association.
"The First Amendment, while not expressly containing a `right
of association,' does protect `certain intimate human
relationships,' as well as the right to associate for the
purposes of engaging in those expressive activities otherwise
protected by the Constitution." Freeman v. City of Santa Ana,
68 F.3d 1180, 1188 (9th Cir. 1995) (quoting Roberts v. United
States Jaycees, 468 U.S. 609, 617-18 (1984)); see also NAACP
v. State of Alabama, 357 U.S. 449, 460-61 (1958) (the First
Amendment, as incorporated by the Fourteenth Amendment's
guarantee of due process, prohibits the government from taking
action that would abridge an individual's right of association).
The Supreme Court has recognized that "grand juries must operate
within the limits of the First Amendment as well as the Fifth."
Branzburg v. Hayes, 408 U.S. 665, 708 (1972). The First
Amendment protects against grand jury inquiries "`instituted or
conducted other than in good faith.'" In re Grand Jury
Proceedings (Scarce), 5 F.3d 397, 400 (9th Cir. 1993) (quoting
Branzburg, 408 U.S. at 707).
Based upon the declarations submitted by the government, the
Court concludes that the grand jury's investigation in this case
has been undertaken in good faith and is a legitimate
investigation into criminal activity that occurred within the
Southern District of California. The Court further concludes that the grand jury's questions are not
designed to harass or intimidate Fink or infringe upon her
associational rights under the First Amendment. Therefore, Fink's
assertion of rights under the First Amendment do not constitute
"good cause" justifying her refusal to testify before the grand
Fink, through incorporation of witness David Agranoff's moving
papers, also asserts that the grand jury's investigation is an
attempt by the government to set a "perjury trap" such that she
should not be required to respond to the grand jury's questions.
Even assuming that the Ninth Circuit recognizes the "perjury
trap" doctrine, it is no bar to a grand jury's legitimate
investigation of criminal activity. United States v. McKenna,
327 F.3d 830, 837 (9th Cir. 2003). As indicated above, the Court
is satisfied by the government's declarations that the grand jury
is conducting a legitimate investigation into crimes which have
taken place in the Southern District of California.
Finally, also by incorporation, Fink argues that the government
is improperly using the grand jury proceedings here to discover
evidence to be used at trial in a case pending against activist
Rod Coronado in the district court in Tucson, Arizona. A grand
jury proceeding may not be used to investigate and obtain
additional evidence against a defendant against whom an
indictment has already been issued. In re Grand Jury Proceedings
(Johanson), 632 F.2d 1033, 1041 (9th Cir. 1980). The question is
whether the "sole or dominant purpose of seeking the evidence
post indictment is to prepare for the pending trial." Id. The
Court is satisfied by the government's declarations in this case
that the grand jury's questions are aimed at discovering evidence
regarding the investigation of criminal activity that occurred in
the Southern District of California, and not for the "sole or
dominant purpose" of gathering evidence to be used regarding the
unrelated pending charges against Mr. Coronado.
Fink also moves for disclosure of allegedly illegal
surveillance. Under appropriate circumstances, a grand jury
witness may refuse to answer questions, based upon a claim that
he or she has been the subject of illegal wiretapping. United
States v. Alter, 482 F.2d 1016, 1021-22 (9th Cir. 1973).
Pursuant to 18 U.S.C. § 3504, the government must respond to a
witness's claim that evidence has been obtained by unlawful
electronic surveillance. "[T]he specificity and amount of
evidence the government must produce to satisfy its burden when
denying the existence of electronic surveillance varies with the strength of the witness's
allegations. . . . Thus, the government is permitted to respond
to a witness's general allegations about the existence of
electronic surveillance with a general denial." In re Grand Jury
11-84 (Worthington), 799 F.2d 1321, 1324 (9th Cir. 1986). Here,
Fink states, in a purely conclusory manner, that she has been
subject to illegal electronic surveillance. In a related matter
the Court reviewed the sealed declarations of Mr. Parmley and
concluded that no further hearing is necessary on the question of
the existence of electronic surveillance. Mr. Parmley has
represented to this Court that his previously filed declarations
are factually accurate as to Fink. (Opp. at 9 fn. 4.) The Court
accepts Mr. Pamley's representation. Given the vague and
conclusory allegations by Fink, the government's response by way
of declaration is sufficient.
Fink's assertion of her rights under the First Amendment are
without merit because the grand jury's investigation has been
undertaken in good faith regarding criminal activity that
occurred within the Southern District of California. None of the
other arguments raised by Fink justify her refusal to testify.
Fink has refused, without just cause, to comply with an order of
the Court to testify before the grand jury and is found to be in
civil contempt pursuant to 28 U.S.C. § 1826(a).
Fink moved the Court for bail pending appeal of this contempt
order. Pursuant to 28 U.S.C. § 1826(b), bail shall not be granted
to a person held in contempt under that section "if it appears
that the appeal is frivolous or taken for delay." The Court
concludes that Fink's First Amendment and other arguments lack
merit under well established Supreme Court and Ninth Circuit
authority and there is no likelihood she will prevail on the
merits of any of those arguments on appeal. Two previous
witnesses, David Agranoff and Danae Kelly, moved this Court to
quash their subpoenas before this grand jury on the very same
grounds as Fink. The Court denied their motion to quash their
respective subpoenas, held each in contempt, and remanded both to
custody. Both appealed to the Ninth Circuit. In an August 9, 2005
Memorandum, the Ninth Circuit, in a unanimous ruling, found that
this Court did not abuse its discretion in denying witness David
Agranoff's and witness Danae Kelley's motion to quash their
respective grand jury subpoenas. In light of this Court's
previous decision and the Ninth Circuit's unanimous affirmation
of it, the Court finds that any appeal would be frivolous and taken for the
sole purpose of delay. Lastly, any further delay in these
proceedings will substantially undermine the government's
legitimate investigation. Therefore, bail is denied.
IT IS SO ORDERED.
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