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.
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.
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 ...