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United States v. Curcio

decided: April 13, 1960.

UNITED STATES OF AMERICA, APPELLEE,
v.
CHARLES CURCIO, APPELLANT.



Author: Mclaughlin

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellant was found guilty of contempt for refusing to answer questions before a federal grand jury*fn1 after having been granted immunity under the Narcotic Control Act of 1956 (18 U.S.C. § 1406) and ordered by the court to answer the questions. He appeals.

In February, 1959 appellant appeared before a federal grand jury in the District of New Jersey.He was asked a series of questions regarding the narcotic traffic and refused to answer them on the ground his answers might tend to incriminate him. The District Attorney on the authority of the Attorney General applied for an order directing Curcio to testify under the provisions of 18 U.S.C. § 1406. The court directed Curcio to return to the grand jury and testify regarding the particular matters. Curcio was asked the same questions as previously and refused to answer them for the same reason as before.

Appellant argues as his first point that the 1956 Act grants both federal and state immunity to witnesses included within it. The pertinent part of the statute reads:

"Whenever in the judgment of a United States attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury or court of the United States involving any violation of - * * * subsection (c), (h), or (i) of Section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C., sec. 174), * * * is necessary to the public interest, he, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. But 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 (except prosecution described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section."

It is most noteworthy that the law is not attacked as unconstitutional as has been the usual course in this type of case. The theory here assumes that the immunity granted covers state prosecutions. But asserts the appellant, the district judge erroneously restricted the immunity allowed to the federal side. We will deal with that proposition later.

First we should make very clear the firmly established position of the federal courts with reference to the 1956 law. Unquestionably the language of the immunity section is subject to the interpretation that it is intended to embrace state prosecutions. See Ullmann v. United States, 1956, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511, construing the Immunity Act of 1954, 18 U.S.C. § 3486, which contained substantially the same language. In Tedesco v. United States, 6 Cir., 1958, 255 F.2d 35, 39, Judge Martin, while doubting the government right to immunize persons from prosecution for state narcotic violations, did consider that the 1956 Act undertakes to grant state as well as federal immunity. However, under the sharply defined factual basis of this appeal, we are not at all concerned with that question. If the immunity should be eventually construed to extend to state offenses the true issue before us would not be affected. And if the apparent inclusion of state immunity were held unconstitutional that would not defeat the federal grant because the Act contains a separability provision stating: "If any provision of this Act, or the application thereof to any person or circumstances, is held invalid, the remaining provisions of this Act, or the application of such provisions to other persons or circumstances, shall not be affected thereby." Section 1401 note.

It is also firmly settled that a federal immunity statute which does not absolve state crimes is nevertheless valid. That is the doctrine of the controlling Supreme Court decision, United States v. Murdock, 1931, 284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210. To same effect United States v. Reina, 2 Cir., 1959, 273 F.2d 234; Tedesco v. United States, supra.

The above brings us to appellant's key contention which as stated by him reads:

"Did the Court err in not granting Appellant immunity from state prosecution in accordance with and as required under the Immunity Provisions of the Narcotic Control Act of 1956?"

Appellant does not suggest that the court's order requiring him to testify in any way abridged the statute. He could not, for that order reads:

"Ordered, that Charles Curcio be, and he hereby is, instructed to answer the questions propounded to him before the Grand Jury and to testify and produce evidence as to such matters under inquiry before said Grand Jury, and, in accordance with Title 18, United States Code Section 1406, he shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court, except that he shall not be exempt from prosecution for perjury or contempt committed while giving testimony or producing evidence under this Order;"

He does charge: "That the Court in the interpretation, to the appellant, of its order of immunity restricted the immunity to Federal prosecution only, thereby denying appellant the protection contemplated and required by the Immunity ...


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