United States District Court, Northern District of Illinois, E.D
June 24, 1974
IN RE ALVIN KADISH, A WITNESS BEFORE THE SPECIAL JANUARY 1974 GRAND JURY.
The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER
This matter is before the court on the petition of Alvin Kadish
to quash a subpoena
of the Special January 1974 Grand Jury on the ground that the
grand jury is being misused by the government. For the reasons
set forth below, this petition shall be denied.
The petitioner contends that the grand jury is being used 1) to
deny his rights to administrative procedures promulgated under
26 U.S.C. § 7602 and 2) as a subterfuge to obtain information in a
civil tax investigation being conducted by the IRS.
Petitioner's first contention is premised on the theory that
once the IRS initiates a civil tax investigation, the grand jury
may not commence a criminal tax investigation without affording
petitioner all the administrative procedural rights established
in 26 U.S.C. § 7602. In response to a similar argument, the court
in In re Goldman, 331 F. Supp. 509, at 510 (W.D.Pa. 1971) said:
"It is the opinion of the court that
26 U.S.C. § 7602 is not the exclusive method for investigation by
the government into income tax affairs and that the
same was not intended to limit the powers of a grand
jury. The attorneys conducting this grand jury were
particularly authorized to inquire into internal
revenue matters as well as other violations of
Federal Criminal Laws."
The investigative powers of the grand jury must of necessity be
broad if its public responsibility is to be adequately
discharged. Branzburg v. Hayes, 408 U.S. 665, 700, 92 S.Ct. 2646,
33 L.Ed.2d 626 (1972). There is no indication that these powers
were meant to be curtailed through the enactment of § 7602. See
In re April 1956 Term Grand Jury, 239 F.2d 263, 270 (7th Cir.
Moreover, the issues raised by petitioner are premature, and
are more properly raised at the time of indictment by the
challenged grand jury. In re April 1956 Term Grand Jury, supra
Petitioner's second contention is that the grand jury
investigation was merely a subterfuge to obtain information in a
civil tax investigation being conducted by the IRS. It is well
established that a grand jury may not be utilized solely for the
purpose of making an investigation of civil matters. United
States v. Procter & Gamble, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d
1077 (1958). However, this does not preclude the government from
using evidence, legitimately developed by the grand jury, in
concurrent or future civil proceedings. United States v. Procter
& Gamble, supra; United States v. General Electric Co.,
209 F. Supp. 197 (E.D. Pa. 1962). Thus, it is clear that if the
Special January 1974 Grand Jury has commenced a good faith
criminal investigation of petitioner, the petition to quash must
In response to petitioner's charges, the Special Attorney for
the Department of Justice involved in this matter has
represented, in an affidavit, that the grand jury "has been and
is now conducting an investigation into possible violations of
Title 26, United States Code, Section 7206." The affidavit does
not specifically name the petitioner.
The court directs the Special Attorney named in the affidavit
to submit a supplemental statement that the grand jury has
commenced a good faith criminal investigation of the named
petitioner. In re William H. Pflaumer & Sons, Inc., 53 F.R.D. 464
(E.D.Pa. 1971). The petition to quash shall be denied on the
condition that the supplemental affidavit be filed with this
court within five days of the entry of this order.
It is therefore ordered:
1. The petition to quash the subpoena of the Special January
1974 Grand Jury shall be, and the same is hereby, denied.
2. The Government's petition for a court order directing
petitioner to furnish exemplars of his handwriting to the Special
January 1974 Grand Jury shall be, and the same is hereby,
3. The government shall submit a supplemental affidavit in
accordance with the provisions of this memorandum.
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