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IN RE GRAND JURY PROCEEDINGS

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.

BACKGROUND

  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 Amendment right.

  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 jury.

  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.

20050825

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