caused by the number of subpoenas issued in this district. In any event, the Northern District of California subpoena was also withdrawn without Weiner testifying after Weiner again moved to quash.
The witnesses do not draw any direct connection between the alleged abusive behavior by government agents, particularly F.B.I. agents, and the grand jury process at issue here. For example, they do not claim that any physical evidence pertinent to the grand jury investigation was obtained as a result of the agents' allegedly unlawful actions, a claim which, incidentally, would not necessarily be grounds for quashing the subpoenas. See United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), where the Court held that a witness summoned to testify before a grand jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure. They simply maintain that the subpoenas should be quashed, or at least that an evidentiary hearing should be held, because of the alleged abusive behavior of the agents. Such allegations do not constitute grounds for quashing a valid grand jury subpoena. Cf. the unreported opinion of Judge Herman in In re Grand Jury Proceedings (Scott and Miller), MCD Nos. 4541 and 4542, filed August 22, 1975, at pp. 8-9. As Judge Herman points out in his opinion, a person allegedly victimized by such misconduct may consider an action against the agents themselves, see Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), but may not attempt to thwart a grand jury investigation that has been demonstrated by government affidavit to be proper. Furthermore, to require the ventilation by hearing of every allegation of government misconduct before a witness would be required to respond to a grand jury subpoena ". . . would saddle a grand jury with minitrials and preliminary showings [which] would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws." United States v. Dionisio, 410 U.S. 1, 17, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973).
Many of Shinnick's arguments concerning misconduct and improper purpose are similar to Weiner's and are unpersuasive for the reasons described, supra. Shinnick argues in addition that the subpoena, by which the grand jury seeks to have him produce fingerprints and handwriting and hair samples, should be quashed because the government already has in its possession two of the items sought -- his fingerprints and samples of his handwriting from the military records of his service in the United States Air Force from 1967 to 1971 -- and because the third item, the hair sample, is irrelevant as it would not be competent evidence against him during a criminal trial. These arguments are also unconvincing. With respect to the fingerprints and handwriting samples, which Shinnick does not deny may be obtained under ordinary circumstances by a grand jury subpoena, see In Re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d Cir. 1975), the government is entitled to "competent fresh evidence," In re Grand Jury Subpoena Duces Tecum (Southern Motor Carriers Rate Conference, Inc.), 405 F. Supp. 1192, 1198 (N.D. Ga. 1975), and the fact that the government may already have the requested materials in its possession will not ordinarily prevent a grand jury from obtaining them in connection with its own independent investigation. This is particularly so in the case of fingerprints and handwriting samples, since, even assuming the government does have military records with fingerprints and handwriting samples that purport to be Shinnick's, it would have a difficult time at trial establishing that those prints and samples are in fact the witness's. The government does not have to be confronted with such a potential chain of possession problem, and may obtain new fingerprints and writing samples from the witness via the instant subpoena.
Shinnick's argument regarding the hair samples requires little comment. Without deciding whether or for what purpose hair strands may be admitted against a defendant during a criminal trial, although it should be noted that Shinnick's contention that they are in admissible as incompetent and irrelevant would not appear to be correct, cf. United States v. D'Amico, 408 F.2d 331 (2d Cir. 1969), it is sufficient to note that a witness may not interfere with the course of the grand jury's inquiry by urging "'objections of incompetency or irrelevancy, such as a party may raise, for this is no concern of his.'" United States v. Calandra, 414 U.S. 338, 345, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), quoting Blair v. United States, 250 U.S. 273, 282, 63 L. Ed. 979, 39 S. Ct. 468 (1919). The motions to quash on the grounds of governmental misconduct and improper purpose will be denied.
Weiner has moved for a protective order requiring the government to file an affidavit stating whether or not he is a target of the investigation, to certify existing evidence that it has regarding Weiner in order that the witness may be certain that the government does not violate the immunity afforded him before the grand jury by using that testimony to prosecute him at a later date, and to furnish him a transcript of his grand jury testimony. This motion will be denied. The government is under no obligation to so inform a witness before a grand jury whether he is a target of the investigation. With respect to protection against a possible violation of the witness's immunity, he is sufficiently protected by the holding of Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972) that in the event that an immunized witness is subsequently indicted, the prosecution has "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id., 406 U.S. at 460. The request for a transcript of the witness's grand jury testimony is also made with an eye to protecting the witness's rights following a grant of immunity. Weiner argues that he should have a copy of the transcript of his testimony in order that he can more easily determine whether that testimony was used by the government against him in the event that he is indicted in the future. This request is premature, however, inasmuch as Weiner has not been indicted in connection with the instant investigation. In the event that he is so indicted in the future, the propriety and necessity of his obtaining a copy of his grand jury testimony will materialize. Indeed, under those circumstances, Weiner would be able to obtain by discovery from the government a copy of his grand jury testimony. See Rule 16(a)(1)(A), Federal Rules of Criminal Procedure.
Weiner's motion for supplemental instructions to the grand jury will remain under advisement.
William J. Nealon / United States District Judge
ORDER [August 6, 1976]
Now, this 6th day of August, 1976, in accordance with memorandum this day filed, the motions to quash the subpoenas as returnable to an improper situs, and to quash on the grounds of governmental misconduct and improper purpose, and for an evidentiary hearing on the alleged illegal electronic surveillance, filed by both witnesses, and the motion for protective orders filed by Mr. Weiner are denied. Mr. Weiner's motion requesting supplemental instructions to the grand jury will remain under advisement.
William J. Nealon / United States District Judge