The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the amended motion of defendant George
DeMet in the nature of a plea in bar.
The defendant DeMet was convicted on June 20, 1972 of a
violation of the Hobbs Act, 18 U.S.C. § 1951. Shortly after his
conviction and after the filing of a notice of appeal the United
States Attorney for the Northern District of Illinois, with the
approval of the Department of Justice, sought an order from the
United States District Court for the Northern District of
Illinois requiring George DeMet to give testimony or to provide
other information pursuant to 18 U.S.C. § 6002, 6003 in a matter
under investigation before the Special February 1971 Grand Jury,
involving possible violations by himself and others of Title
18 U.S.C. § 1951. This is the same statutory offense for which he
had already been found guilty and sentenced, and the same
statutory offense for which he stands charged in the instant
indictment. The petition for the order asserted that the
testimony of George DeMet in regard to the above described
investigation before the Special February 1971 Grand Jury was
necessary to the public interest. The defendant DeMet, pursuant
to an order of immunity entered by the Chief Judge of the United
States District Court for the Northern District of Illinois,
testified before the Special February 1971 Grand Jury.
Subsequent to the defendant's testimony a Special March 1972
Grand Jury returned the instant indictment against the defendant
George DeMet. The instant indictment charges a one count
conspiracy in which defendants Mark Thanasouras, David Holder,
Robert Eadie, Kenneth DePaola, Leroy Yaeger, Masanobu Noro, James
Psichalinos, Frank Nanni, James Gartner, Anthony DeRango, Eugene
Mannion, Ronald DiCicilia and George DeMet, together with
unindicted co-conspirators named Frank Bychowski and Charles
Ekenborg did conspire to obtain various sums of money from retail
liquor dealers with their consent, such consent being induced by
fear of economic harm and under color of official right in
violation of 18 U.S.C. § 1951. The indictment sets forth 28
retail liquor dealers who were victims of this alleged unlawful
conduct including Marty's Lounge, 5242 W. Division, which is
apparently owned by one Martin Lindstrom.
A careful reading of the Special February 1971 Grand Jury
transcript will disclose that when compelled to answer under the
grant of use immunity the defendant George DeMet was subjected to
some examination regarding his activities and involvement in the
alleged "shake-down" of Marty's Lounge. A considerable portion of
this Grand Jury proceeding was devoted to questions and partially
responsive and complete answers by the defendant concerning the
defendant's role and the surrounding events involved in the
acceptance of $75.00 a month from Martin Lindstrom. In addition
to the defendant's examination on the subject of Marty's Lounge,
he was asked questions regarding his association with his
co-defendants in this case and the sharing or distribution of any
monies secured from Marty's Lounge and other business
establishments within the Fifteenth District of the Chicago
Police Department. The defendant DeMet, under the grant of use
immunity admitted to the same course of conduct as to many places
of business but was unable to name them due to the lapse of time
and his inability to remember names and dates. In a very broad
sense the defendant admitted accepting money from some retail
liquor dealers in the Fifteenth District of the Chicago Police
Department without being clear as to the names of the
establishments or the dates of the alleged activity.
The defendant, in support of the instant motion, contends:
1. Under the law this defendant having testified
pursuant to the "use" immunity granted under
18 U.S.C. § 6002-3 and having been indicted
thereafter, a "heavy burden" is imposed upon the
government to demonstrate by positive proof that
the prosecution did not emanate from the use of his
compelled testimony or any leads therefrom.
2. After the defendant has shown the relevance of the
defendant's grand jury testimony to the charges
brought, the government cannot be excused from
assuming, or having the Court impose upon it, the
"heavy burden" of demonstrating non-use. See
Kastigar v. United States, 406 U.S. 441, 92 S. Ct.
1653, 32 L.Ed.2d 212 (1972).
The defendant seeks that a complete evidentiary hearing be had
with the burden residing on the government to show that the
indictment should not be dismissed because it violates the
defendant's grant of "use" immunity. The defendant also requests
that a copy of the charge of the Court to the grand jury,
instructions given to it, and any supplemental instructions
thereto as the ground rules by which the grand jury conducted the
proceedings in this cause. In this regard the defendant relies
upon United States v. Alter, 482 F.2d 1016, 1028-1029, Footnote
21 (9th Cir. 1973).
The statutory authorization for the conferral of immunity,
18 U.S.C. § 6002, provides that no evidence directly or indirectly
derived from the compelled testimony may be used against the
immunized witness in a criminal case. Section 6002 does not, as
the defendant apparently contends, bar subsequent prosecutions.
Kastigar v. United States, supra; Murphy v. Waterfront
Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).
The government has represented to this Court that the instant
indictment is not a violation of the defendant's grant of use
immunity because it had an independent source for the evidence
used to secure the indictment. After carefully examining the
instant indictment and the defendant's compelled grand jury
is the opinion of this Court that the instant indictment does not
appear to violate the grant of use immunity to the defendant. The
quality and quantity of the information contained in the
government's questions to the immunized defendant far exceed the
quality of the defendant's answers. By and large, the defendant's
answer to detailed government questions was "I don't recall". It
is clear from the government's questions that it had obtained
considerable information about the defendant's alleged illegal
activities from Frank Bychowski, an unindicted co-conspirator,
prior to the defendant's immunized testimony. Thus, the
particular facts of the instant case do not necessitate an
evidentiary hearing at this time as to whether the instant
indictment was the product of an independent evidence source
which is exclusive of any information or leads obtained from the
defendant's immunized testimony. See, e.g., United States v.
Goodwin, 470 F.2d 893 (5th Cir. 1973); United States v. McDaniel,
352 F. Supp. 585 (D.N.D. 1972). Under the peculiar circumstances
and facts attendant to the instant indictment, the requested
evidentiary hearing is not required in the interests of justice.
To grant an evidentiary hearing in this case would only serve to
allow the defendant "pre-trial discovery" which has already been
denied by this Court.
The instant ruling does not preclude the defendant from probing
at trial the source of the evidence which will be presented
against him or which was presented to the grand jury by the
Further, the defendant's request for the instructions and
charge given the grand jury by the Court in this cause is without
merit. First, the defendant mistakenly contends that the Special
February 1971 Grand Jury which heard the defendant's immunized
testimony also indicted the defendant. This is clearly not the
case. The Special March 1972 Grand Jury indicted the defendant.
Second, the charge and instructions to the Special March 1972
Grand Jury (the only grand jury relevant to the instant action)
did not apparently involve itself with the defendant's immunized
testimony. Thus the Alter case relied on by the defendant to
support his request is clearly distinguishable from the instant
action. Third, the instructions and charge to the Special March
1972 Grand Jury are not material to the instant motion involving
the defendant's immunized testimony and the source of evidence on
which the instant indictment and prosecution are based.
Accordingly, the defendant's amended motion in the nature of ...