In Re Grand Jury Subpoena of Martin Flanagan. United States of America v. Martin Flanagan

691 F.2d 116, 1982 U.S. App. LEXIS 24853
CourtCourt of Appeals for the Second Circuit
DecidedOctober 13, 1982
Docket82 Docket 82-6058
StatusPublished
Cited by45 cases

This text of 691 F.2d 116 (In Re Grand Jury Subpoena of Martin Flanagan. United States of America v. Martin Flanagan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Grand Jury Subpoena of Martin Flanagan. United States of America v. Martin Flanagan, 691 F.2d 116, 1982 U.S. App. LEXIS 24853 (2d Cir. 1982).

Opinions

MANSFIELD, Circuit Judge:

The government appeals pursuant to 18 U.S.C. § 3731 from an order of the Eastern District of New York, Joseph M. McLaughlin, Judge, denying its motion to hold Martin Flanagan, a dual citizen of the United States and Ireland,1 in contempt for refusal to testify under a grant of immunity before a federal grand jury regarding activities in the United States in furtherance of smuggling of guns and ammunition from the United States to Great Britain and Ireland in violation of federal firearms statutes, 26 U.S.C. § 5861 and 22 U.S.C. §§ 2778(b)(2) and (c). We reverse. 533 F.Supp. 957.

After being subpoenaed to appear before a federal grand jury in the Eastern District of New York, which was investigating an alleged conspiracy to run guns to the Irish Republican Army (IRA) in Ireland in violation of the above statutes, Flanagan advised that he would invoke his Fifth Amendment privilege against self-incrimination. Thereupon, on December 4, 1981, Judge McLaughlin signed an immunity order pursuant to 18 U.S.C. §§ 6002 and 6003 directing him to testify but granting him immunity against the use of his testimony in any subsequent criminal proceedings against him. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). On December 9, 1981, Flanagan moved to quash the subpoena, contending among other things2 that since the immuni[119]*119ty order would not protect him from prosecution in Ireland or the United Kingdom of Great Britain and Northern Ireland (UK) it would not give him protection coextensive with his privilege, to which he claimed entitlement under Kastigar and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Following a hearing before the district court on the same date, Flanagan appeared before the grand jury on December 18, 1981, and declined to answer questions regarding gun-smuggling activities in the United States.3 The government made a motion to compel Flanagan to testify or be held in contempt, which was heard by the district court on the same date.

In support of his motion to quash and in response to the government’s motion Flanagan, who is named as an unindicted co-conspirator in a federal prosecution of five others for an alleged unlawful conspiracy to transport firearms to the Republic of Ireland for use by the IRA in Northern Ireland, United States v. Falvey, et al., 81 Cr. 423 (S-2) (JMM) (E.D.N.Y.), pointed to the Northern Ireland (Emergency Provisions) Act of 1978, Ch. 53, 48 Halsbury’s Statutes of England 972-1011 (3d ed. 1978), which makes it a crime to engage in certain types of political activity, including membership in or solicitation for a proscribed organization, and to The Offenses Against the State Act, 1939, No. 13. The government, on the other hand, represented that the transcripts of Flanagan’s testimony would remain secret and not leave the U.S. Attorney’s Office or be disclosed to any other body, that the federal prosecutor had not been in communication with law enforcement authorities of Ireland or the U.K., and that the investigation did not involve activities over which those countries would have any jurisdiction. Therefore, it argued, Flanagan had not advanced any real or substantial danger, within the meaning of Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 480-81, 92 S.Ct. 1670, 1676, 32 L.Ed.2d 234 (1972), of facing any prosecution abroad based on testimony he might give before the grand jury.

On February 10,1982, Judge McLaughlin filed a reasoned opinion denying the government’s motion to compel Flanagan to testify before the grand jury. He concluded that the Fifth Amendment protected Flanagan against the risk of foreign prosecution, relying on Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). He further held that there is a real risk that Flanagan’s answers to the questions put to him before the grand jury could provide a link in a chain of evidence tending to incriminate him under criminal statutes of Northern Ireland and the Republic of Ireland. These statutes include those prohibiting membership in proscribed organizations such as the IRA and permitting the use or possession of documents with respect to a proscribed organization and statements implying membership as evidence of unlawful membership.

The district court observed further that § 1806 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1806, authorizes the United States to make disclosure of foreign intelligence information gained by electronic surveillance. With respect to provisions [120]*120of Rule 6(e)(2), F.R.Cr.P.,4 which requires grand jury testimony to be kept secret, the district court noted that the rule permits the government to make disclosure without court order to a government agency to the extent necessary to assist the prosecutor in the performance of his duty and took the view that the assumption that government officials will maintain secrecy is insufficient protection against foreign prosecution. Although Judge McLaughlin conceded that a grand jury witness could not be extradited to Northern Ireland for membership in a proscribed organization, he reasoned that this did not eliminate the risk of prosecution abroad because the witness might be extradited for “other crimes” revealed by the government’s investigation into the gun-smuggling conspiracy. The district court further concluded that the grand jury’s investigation would inhibit Flanagan’s right to travel periodically to Ireland on political or personal business. Lastly, Judge McLaughlin held the federal grant of immunity insufficient to protect Flanagan abroad for the reason that foreign prosecutors would not be required to assure him that their charges would be based upon evidence independent of his compelled testimony. From the court’s denial of its motion to compel Flanagan’s testimony under 28 U.S.C. § 1826(a) the government appeals.

DISCUSSION

The Fifth Amendment protects a witness against giving testimony that would “furnish a link in the chain of evidence needed to prosecute” him for a crime, provided “the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). But “his say-so does not of itself establish the hazard of incrimination.” Id.

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Bluebook (online)
691 F.2d 116, 1982 U.S. App. LEXIS 24853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grand-jury-subpoena-of-martin-flanagan-united-states-of-america-v-ca2-1982.