In the Matter of James Citroen

267 F.2d 915, 1959 U.S. App. LEXIS 3710

Opinions

PER CURIAM.

Appellant was subpoenaed to appear before the Kings County Grand Jury in connection with its investigation into “ambulance chasing.” He attempted unsuccessfully to have the subpoena quashed in the courts of the state. Having exhausted state remedies, he sought by motion to have the subpoena quashed by the District Court for the Eastern District of New York. As we understand Judge Rayfiel’s opinion, not yet officially reported, it denied the motion on the merits. For reasons about to be stated we think the motion should have been dismissed for lack of jurisdiction.

Appellant’s motion asserts that the Grand Jury cannot grant immunity from prosecution for certain state crimes, and that “To compel this witness, James Citroen, to testify before the Grand Jury that has the power of granting only limited immunity from prosecution, would surely be a violation of Article XIV of the Constitution of the United States * * * ” The motion is premature. No question has yet been put to the witness. When he is questioned, he may or may not claim the privilege against self-incrimination. If he claims it, the Grand Jury may or may not offer him immunity. His motion assumes that he will claim his privilege and that they will then offer immunity. What his motion asks the court to do is to render an advisory opinion as to the scope of the immunity protection under § 2447, N.Y. Penal Law, McKinney’s Consol.Laws, e. 40, if immunity is hereafter offered him, and as to the constitutionality of such a grant of immunity. The court lacked jurisdiction to render an advisory opinion. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89-91, 67 S.Ct. 556, 91 L.Ed. 754.

Order reversed and cause remanded with directions to dismiss for lack of jurisdiction.