In Re Shead
- Reporters:
- ,
- Before:
- Carter
MEMORANDUM FOR ORDER
OLIVER J. CARTER, District Judge.
This matter is before the Court on a motion by the United States for an order granting immunity for several witnesses who were called to testify before the grand jury for the Northern District of California sitting in San Francisco. The witnesses were subpoenaed to appear and did appear on May 14, 1969, to testify before the grand jury. Questions relating to matters involving interstate travel to organize, promote and encourage riots and teaching and demonstrating the use and making of firearms and, explosives were then and there asked of these witnesses. They refused to answer such questions on the ground that the answers they give might tend to incriminate them. The United States Attorney for the Northern District of California has now moved this Court to order the witnesses to answer such questions pursuant to the immunity provisions of
In answer to the motion, the witnesses have filed a cross-motion seeking declaratory and injunctive relief against enforcement of
Before discussing some of the issues raised by the witnesses, the nature of the matter before this Court should be emphasized. This proceeding is the result of a motion by the government to order the witnesses to testify at a grand jury investigation. The constitutional issues presented by the witnesses arise in opposition to the granting of such a motion. Thus, a novel situation is presented in which a three-judge court is being requested to enjoin enforcement of federal laws by persons who are already before the Court with standing to raise as a defense, the issues which form the identical basis for their claim for equitable relief. A similar situation would arise in a criminal prosecution in which the defendant files in the very court which is hearing the matter, a cross-complaint for an injunction against the enforcement of the law under which he is being prosecuted, relying on the principles of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).
Movant and cross-movants have supported their motions with arguments making some reference to the problem of “standing to challenge the constitutionality of the statutes herein.” This Court has no doubt that the witnesses have standing to challenge the constitutionality of these statutes. The government’s motion is based on
As to
In the case before this Court, the applicable portion of
“Whenever in the judgment of a United States attorney the * * * evidence of any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of * * * any of the offenses enumerated in section 2516 or any conspiracy to violate * * * any of the offenses enumerated in section 2516 is necessary to the public interest, such United States attorney * * * shall make application to the court that the witness shall be instructed to * * * produce evidence subject to the provisions of this section * * *. No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence * * *.”
The government’s application states that the “Grand jury was then and there inquiring into matters involving interstate travel to organize, promote and encourage riots and teaching and demonstrating the use and making of firearms and explosives,” when the witnesses refused to testify. Although the government has failed to specify what federal crimes the grand jury was investigating, the application can be interpreted to mean the grand jury was investigating violations of
The Court now turns to the question of whether or not the prayer by cross-movants for injunctive relief may be honored in this case, for purposes of determining whether a three-judge court should be convened under
Since this Court has the power to grant equitable relief, it may be argued that cross-movants should be allowed to have their cross-motion treated as a counterclaim for declaratory and injunctive relief against prosecution under
Even if this Court were to procedurally accept cross-movants’ request for injunctive relief, the Court concludes that such relief is inappropriate in this case. There is no showing here that movants would not, nor can it be assumed that they will not acquiesce in the decision of this Court holding the challenged statutes unconstitutional. See Douglas v. City of Jeannette, 319 U.S. 157, 165, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). No irreparable injury would result to crossmovants by this Court deciding the questions at law without granting equitable relief. There being no basis for equitable relief, a three-judge court is unwarranted. As said in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed. 2d 794 (1962):
“When an application for a statutory three-judge court is addressed to a district court, the court’s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirement of the three-judge statute.” [Emphasis added].
An additional reason exists why convening a three-judge court would be improper in this case. The cross-movants’ constitutional attack on
It is, therefore, concluded that cross-movants are not entitled to have their claims heard by a three-judge court. This conclusion is reached without any frustration to and with full consideration of the purpose of
The Court now turns to the claim by cross-movants that
“But these are quite different matters from the instant case, in which crossmovants have been subpoenaed to testify, have not been charged with violation of any statute, where only ‘riots’ in the abstract appear to be under consideration by the Grand Jury, and where no clear danger, past, present, of future, can be shown to arise from their exercise of constitutional rights of speech, travel, and association.”
On June 9, 1969, the Supreme Court decided Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430, affirming the principle that:
“[T]he constitutional guaranties of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. * * * [T]he mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. * * * A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”
This Court feels that
Brandenburg
may require a further discussion of the constitutionality of
“(a) (1) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
(A) to incite a riot; or
(B) to organize, promote, encourage, participate in, or carry on a riot; or
(C) to commit any act of violence in furtherance of a riot; or
(D) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph—
“Shall be fined not more than $10,000, or imprisoned not more than five years, or both.”
In summary, Congress has made it a crime if there is an intent to promote a riot at the time of use of interstate or foreign facilities and at that time or thereafter, the additionally-required overt acts are committed. This intent must be to promote, and the overt acts must be committed for the purpose of promoting, the disturbances defined in
As used in this chapter, the term “riot” means a public disturbance involving :
1) acts of violence which
a) shall constitute a clear and present danger of damage or injury to persons or property, or
b) shall result in damage or injury to persons or property; or
2) threats of the commission of acts of violence by a person having the ability of immediate execution of such threats where the performance of the threatened act
a) would constitute a clear and present danger of damage or injury to person or property, or
b) would result in damage or injury to person or property.
Subparagraph (b) of
“As used in this chapter, the term ‘to incite a riot’, or ‘to organize, promote, encourage, participate in, or carry on a riot’, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”
Subparagraph (b) does not limit application of
The contention that this exclusion requires an interpretation that “mere advocacy of violence” is made a crime is untenable. Such an interpretation would require that the language actually used by Congress, “shall not be deemed to mean * * * advocacy of ideas * * *
not
involving advocacy of any act of * * * violence”, be changed by substituting the phrase “except when” for the term “not”. Furthermore, unlike sub-paragraph (a) of
It is therefore this Court’s conclusion that the foregoing interpretation of the Act is the only reasonable one available. After research of the extensive legislative history of the Civil Rights Act of 1968 within the time permitted, this Court has not found any significant material which would either support or detract from the accuracy of such an interpretation on this particular point. It is therefore this Court’s duty to reasonably interpret the statute with what is available. There is no basis for argument by the government that the
The Court next discusses the constitutionality of
“[T]he immunity granted need only remove those sanctions which generate the fear justifying invocation of the privilege: ‘The interdiction of the 5th Amendment operates only where a witness is asked to incriminate himself, — in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the amendment ceases to apply.’ [Citation]. Here, since the Immunity Act protects a witness who is compelled to answer to the extent of his constitutional immunity, he has of course, when a particular sanction is sought to be imposed against him, the right to claim that it is criminal in nature.” Ullmann v. United States, 350 U.S. 422, 431, 76 S.Ct. 497, 502, 100 L.Ed. 511 (1956). [Emphasis added].
“ * * * No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding * * * against him in any court. * * * ”
Cross-movants further contend that the last clause in the above-quoted statutory provision limits immunity in criminal proceedings to testimony, as opposed to other evidence which may be compelled. There is no support for this contention. In fact, other immunity statutes with the identical language have been upheld as constitutional. Ullmann v. United States, supra; Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960).
Cross-movants have also called this Court’s attention to Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L. Ed.2d 889 (1968), which held federal wagering tax and registration requirements to be in violation of the Fifth Amendment. It is argued that Marchetti “specifically rejected the possibility of protecting the petitioners with a scheme similar to a grant of immunity” in view of the Fifth Amendment. The argument is buttressed with this quotation from page 59, 88 S.Ct. page 708 of Marchetti, where the Supreme Court discusses the possibility of a judicial immunity scheme:
“Moreover, the imposition of such [immunity] restrictions would necessarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a consequence of the wagering taxes; the federal requirements would thus be protected, only at the cost of hampering, perhaps seriously, enforcement of state prohibitions of gambling.”
The Supreme Court in Marchetti did not reject the possibility of a Congressional immunity scheme within the federal tax structure. In fact, the Court went on to say, immediately following the above-quoted language:
“We cannot know how Congress would assess the competing demands of the federal treasury and of state gambling prohibitions; we are, however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values.” Id. at page 60, 88 S.Ct. at page 708 [Emphasis added].
Cross-movants’ final contention is that they, as Black citizens of the United States and Members of the Black Liberation Movement, are being deprived of their right provided by the Thirteenth Amendment to the United States Constitution to be free of badges and indicia of slavery in that the statutes deprive Black people, as a class, of the national rights of citizenship. Neither the legislative history of the statutes involved here, nor the statutes themselves, nor any other showing made to this Court, support the finding that these Black people are particularly being subjected as a class to any kind of harassment, oppression, or bad faith application of the laws. E. g., S.Rep.No. 721, 90th Cong., 2d Sess. (1968) (Civil Rights Act of 1968), 2 U.S.Code Cong, and Adm.News, p. 1837 (1968); S.Rep.No. 1097, 90th Cong., 2d Sess. (1968) (Omnibus Crime Control and Safe Streets Act of 1968), 2 U.S.Code Cong, and Adm.News, p. 2112 (1968). Therefore, the Court rejects this argument as being unsupportable.
For the foregoing reasons, this Court will grant the government’s application for an order pursuant to