time, acting on the advice of counsel, she repeatedly invoked her
privilege against self-incrimination. She, too, was subsequently
indicted and charged with violating and conspiring to violate 18
U.S.C.A. § 2314.
With respect to Medo Calzavara, at the time of his Grand Jury
appearance he had not, as the Assistant U.S. Attorney knew,
retained counsel. He was not advised of his right to consult
counsel before testifying, nor was he advised either prior to or
during that proceeding of his right not to answer any question
which might tend to incriminate him or that anything he said
might be used against him.*fn1 Accordingly, it is urged on his
behalf that this failure to warn, at a time when he was allegedly
earmarked as a "putative defendant", is sufficient, by itself, to
vitiate the ensuing indictment. For its part, the Government
argues that no such warning was required since Calzavara was
called to testify as its witness, not as a defendant or
prospective defendant, citing United States v. Scully, 2 Cir.
1955, 225 F.2d 113, cert. denied 350 U.S. 897, 76 S.Ct. 156, 100
L.Ed. 788 (1955) and United States v. Parker, 7 Cir., 1957,
244 F.2d 943, cert. denied 355 U.S. 836, 78 S.Ct. 61, 2 L.Ed.2d 48
(1957). The Government further contends that it was not until
after his Grand Jury testimony that information was uncovered
which sufficiently linked him with the matter under investigation
to warrant the return of an indictment as to him.
In their arguments, both sides make much of the appropriate
label to be placed on Medo Calzavara at the time of his
appearance before the Grand Jury — witness, possible defendant,
prospective defendant, putative defendant, named defendant — as
though the proper characterization would somehow provide a
convenient solution to the problem which the motion raises. This
analysis, while it may contribute to the solution, appears to
miss the mark. The real question, it seems to me, ought to be
whether, in the absence of a warning, Medo Calzavara may have
tended to incriminate himself by his testimony before the Grand
Jury. If so, the indictment must be quashed, for it would violate
the constitutional precept embodied in the Fifth Amendment's
privilege against self-incrimination, and all the Government's
most self-serving characterizations of Calzavara's status could
not save it in the face of this. Nor could it be saved by the
subsequent discovery of independent information warranting his
This, of course, forces the Government to determine when a
warning is appropriate. But, after all, it is not an unreasonable
burden, especially since the U.S. Attorney or his assistant is in
a good position to know what testimony can be expected. If the
Government chooses to call a witness before the Grand Jury who is
or may be a defendant, its own self-interest as well as a proper
regard for constitutional due process would seem to dictate the
issuance of a warning and the securing of an immunity waiver. The
risk it runs in failing to warn is a quashed indictment. In order
to avoid this contingency, the fair and wise practice would seem
to call for a warning and the securing of an immunity waiver
whenever it is even remotely possible that the testimony of a
witness might tend to incriminate him. See United States v.
Turning then to Calzavara's Grand Jury appearance, it is clear
from an examination of his testimony there that no direct
incriminating statements of fact were made by him. He was treated
as a witness who had information of events about which the
Government was desirous of apprising the Grand Jury, and the
questions by the Assistant U.S. Attorney and Calzavara's answers
thereto followed this tack. It is apparent from the transcript
that the Assistant U.S. Attorney did not get the kind of answers
he wanted. Indeed, at the oral hearing in this Court, Calzavara
stated that after his Grand Jury appearance "* * * Mr. Corry got
awful mad at me. He says, `How long did it take you to think up
that cute story you told the Grand Jury?' And I said, `What do
you mean? Ask Mr. McCormick (F.B.I. agent) if that isn't the
While an examination of Medo Calzavara's Grand Jury testimony
reveals no direct incriminating statement, there is no way to
know whether in fact his appearance was incriminating in the
minds of some or all the members of the Grand Jury. Certainly on
the record before me, I cannot say that his testimony might not
have tended to incriminate him. The only portion of the Grand
Jury proceedings for which a transcript is available is
Calzavara's testimony. What the U.S. Attorney or Assistant U.S.
Attorney said to the Grand Jury subsequently concerning this
testimony, what incriminating inferences they drew from it, how
they characterized it as to truth or accuracy, etc. are all
Whether constitutional rights have been respected should not be
the subject of speculation. Where, as here, there is doubt, the
only proper action is to dismiss the indictment.
While the foregoing disposes of Medo Calzavara's motion, there
is inherent in this situation a broad general question which
merits further consideration. In this particular case, a Grand
Jury transcript is available only with respect to the testimony
of one witness. I understand that the practice varies from
district to district and even within districts, but that in many
districts the usual procedure is not to make a stenographic
record, much less to transcribe the testimony, of most witnesses
before the Grand Jury. In view of the importance of the Grand
Jury proceedings and the several circumstances in which reference
thereto is necessary, the failure to make at least a stenographic
record which can be transcribed, if needed, seems most
unfortunate and obviously creates opportunity for mischief.
Moreover, even where there is a transcript of the testimony
before the Grand Jury, it may, as in this case, be difficult or
impossible to determine whether that testimony was
self-incriminating. Under all the circumstances, it would seem
desirable to establish the rule that, except as to perjury
indictments arising out of testimony before the Grand Jury, no
individual who is not warned of his privilege against
self-incrimination and executes a formal immunity waiver either
upon advice of counsel or after declining such advice, may
subsequently be indicted for an offense about which he was
questioned before the Grand Jury. This rule would impose no
greater burden on the Government than the Constitution and the
law contemplate. It would merely regularize what is at present a
loose and haphazard procedure.
With respect to Rose Calzavara, it is conceded that she gave no
incriminating testimony before the Grand Jury. She contends,
however, that the Assistant U.S. Attorney, by the form and
manner of his questioning, prejudiced her in the eyes of that
panel, thereby inducing the return of the indictment.
As previously indicated, there is no transcript of Rose
Calzavara's testimony. She avers that after the Assistant U.S.
Attorney had been advised of her intention to rely on her
Constitutional privilege and not to testify, he nevertheless
brought her before the Grand Jury and asked her certain
questions, including the following:
"Q. Are you married?
"Q. To whom are you married?
"Q. You have a son, don't you?
"Q. Do you love your son?
"Q. Why are you ashamed to answer questions about
"Q. Who is the father of your child?
"Q. What right have you to refuse my questions? I'll
bring you before the Judge and require you to
answer my questions.
"Q. What is the Fifth Amendment? Do you know what it
"Q. Are you an American citizen?"
The Assistant U.S. Attorney testified in this Court that he
remembered asking some of the foregoing questions, did not
remember asking all of them, but conceded that he might have
asked them. While some of these questions are not prejudicial and
might properly be asked in testing the validity of the witness'
reliance on her constitutional privilege, others are clearly
prejudicial and could only be calculated to discredit and impugn
her in the eyes of the jurors.
Again, as in the case of Medo, there is no way of knowing on
what basis the Grand Jury returned the indictment against Rose
Calzavara. In fact, absent any record of the proceedings, there
is no way to ascertain accurately whether any other evidence at
all involving her was presented. But even assuming the
presentation of other evidence which, in itself, would have
warranted the indictment, it must necessarily be pure speculation
as to whether that evidence or the prejudicial conduct of the
prosecutor or both prompted the Grand Jury's action.
The Grand Jury exists as an integral part of Anglo-American
jurisprudence for the express purpose of assuring that persons
will not be charged with crimes simply because of the zeal,
malice, partiality or other prejudice of the prosecutor, the
government or private persons. United States v. Wells,
D.C.D.Idaho 1908, 163 F. 313, 324. In this regard, it is well to
remember Mr. Justice Brandeis' admonition that "[t]he greatest
dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding." Olmstead v. United
States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928)
(dissenting opinion). It is the duty of a prosecutor presenting
a case to a Grand Jury not to inflame or otherwise improperly
influence the jurors against any person. Even the presence of the
prosecutor while the jurors are deliberating their action,
though he say nothing, may be grounds for quashing the
indictment. United States v. Wells, supra.
These principles are so well grounded in our jurisprudence as
not to require elaboration. Their application here leaves me no
alternative but to dismiss the indictment against Rose Calzavara
Accordingly, the indictment as to both Rose and Medo Calzavara