The opinion of the court was delivered by: COOLAHAN
This motion before the Court presents a question of whether or not a person who has testified pursuant to a subpoena issued by the Department of Justice through the instrumentality of the United States Attorney for the District of New Jersey before the Grand Jury may under certain circumstances acquire immunity from prosecution under provisions of 29 U.S.C.A. § 521 and 15 U.S.C.A. § 49.
This motion is made on behalf of the defendant, Ray S. Fisher. After testimony was taken and briefs submitted, the Court took the matter under advisement to study the record and exhibits.
It appears that the defendant Fisher is and was the president and a stockholder of Public Constructors, Inc., (hereafter referred to as Public) a corporation engaged in road and highway construction. The co-defendant named in the indictment, Peter W. Weber, is and was at all times herein business manager of Local 825 of International Union of Operating Engineers, members of which from time to time were employed by Public. Prior to the finding of the indictment in dispute, Weber had been a stockholder of Public and a partner in Jersey Equipment Co. Jersey Equipment Co. was and is a partnership engaged in the business of renting construction equipment to Public.
On January 27th, 28th, 29th, 30th and 31st, 1958 Fisher and Weber appeared before the Select Committee for the 85th Congress, Second Session, who were investigating improper activities in the Labor Management field. Fisher testified
concerning Weber's affiliation with the corporation of which Fisher was the president and as to their holdings in the partnership, Jersey Equipment Co. Weber gave testimony concerning his participation in the above named corporation and partnership and other matters.
As a result of these hearings, the Labor Management Reporting and Disclosure Act of September 14, 1959, Public Laws 86-257, 73 Stat. 519 (Landrum-Griffin Act) was adopted by Congress. On December 29, 1960 Public filed its first "Employers Report" with the United States Department of Labor, pursuant to the Act.
Thereafter all of the reports and results of the investigation by the Labor Department investigators were sent to the Area Director of the Department of Labor, Richard Lally.
On or about November 20th or 21st the Area Director and one of the investigators appeared at the United States Attorney's Office for the purpose of a conference with that official. (Tr. pp. 123-4). The tenor of the conversation concerned the verification of the reports concerning payments made to Weber (Tr. p. 124) and the investigation in general.
Some days prior to December 20, 1961 Fisher, pursuant to a telephone call made by the United States Attorney, was directed to bring certain corporation records before the Grand Jury (Tr. p. 78); and on December 20, 1961 in response to a subpoena previously served on him, Fisher appeared before the Grand Jury and gave testimony concerning the relationship of Weber and one Anna M. Rocha with the aforementioned corporation and partnership. During the course of the preliminary remarks before the Grand Jury, Fisher was advised of his right to avail himself of the privilege of the Fifth Amendment. He was further advised that in the event he sought to invoke the provisions of the Fifth Amendment the matter would be presented before a Federal District Judge who would then decide whether Fisher had proper grounds for asserting the privilege. In addition to the above, Fisher was asked to sign a waiver of immunity which he refused to do.
Inquiry was made of Fisher before the Grand Jury concerning Weber's affiliation with the corporation and partnership, personal use of vehicles owned by Public and on other matters concerning receipt of things of value from Public and Jersey Equipment Co. It is interesting to note that Weber was never called or subpoenaed to appear before the Grand Jury. The only other witnesses to appear, according to the record before the Court, were Fisher and the investigators of the Labor Department who had conducted the preliminary investigation. On April 4, 1962 the indictment, the subject matter of this action, was filed with the Clerk of the Court naming both Fisher and Weber as defendants.
Count one of the indictment charges defendants, Fisher and Weber, with conspiracy against the United States to violate Section 186(b) of Title 29, United States Code, by permitting and assisting Weber to agree to receive and accept money and things of value from Public Constructors, Inc., and Jersey Equipment Co., in violation of 18 U.S.C.A. § 371.
The other substantive counts charge Fisher with violations of 29 U.S.C. § 186(a), (d), in that he did allegedly pay, deliver and agree to pay and deliver to a labor representative, to wit, Weber, things of value of Public Constructors, Inc., and Jersey Equipment Co., during certain periods of time. The charges set forth in the indictment are related to and directly flow from the transactions and matters concerning which Fisher testified to before the Grand Jury and the Legislative Committee.
Section 601 of the Act 29 U.S.C. § 521, gives the Secretary of Labor power to conduct investigations to determine violations of the L.M.R.D.A., with certain exception as to title I. This section gives the Secretary of Labor the power to grant immunity to persons appearing and giving evidence in response to a subpoena issued under the auspices of his department. The immunity statute utilized for the purpose is 15 U.S.C.A. §§ 49, 50, a ...