In Re: v. Grand Jury

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Court of Appeals for the First Circuit·Decided January 11, 1996·No. 95-2338·Published

Opinion

USCA1 Opinion

January 11, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-2338

IN RE:

GRAND JURY.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge] ___________________

____________________

Before

Selya, Cyr and Lynch,
Circuit Judges. ______________

____________________

Peter J. Stelzer on brief for appellant. ________________
Donald K. Stern, United States Attorney, and Jeffrey Auerhahn, ________________ _________________
Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam. Appellant grand jury witness appeals __________

the district court order holding him in contempt for refusing

to answer questions before a grand jury. The

witness/contemnor refused to answer on the ground that the

question violated his rights under the fourth amendment.1

The government filed a petition for contempt and the

witness/contemnor responded by filing a motion, pursuant to

18 U.S.C. 3504, seeking that the government "affirm or deny

the existence of any and all electronic surveillance which

may be used as a basis, direct or indirect, for any questions

to be put to the witness." After hearing in camera __ ______

submissions from the special agent in charge of the

investigation concerning the source of the questions directed

to the witness, the court held the witness had no "just

cause" for refusing to comply with the immunity order and

held him in contempt. The witness/contemnor appeals this

contempt order.2 We affirm.

A grand jury witness who refuses to testify without

"just cause" may be held in civil contempt. 18 U.S.C.

1826(a). However, a showing that the questions addressed to

the witness were based on illegal electronic surveillance

____________________

1. This court has held that the rights of a grand jury
witness to refuse to answer questions based on illegal
surveillance "depend exclusively on [18 U.S.C. 3504]." In __
re Mintzer, 511 F.2d 471, 473 (1st Cir. 1974). __________

2. This court granted the witness/contemnor's motion to be
released pending disposition of this appeal.

constitutes "just cause" for refusal to testify and precludes

a finding of contempt. Gelbard v. United States, 408 U.S. 41 _______ _____________

(1972); In re Doe, 988 F.2d 211, 213 (1st Cir. 1992). ___________

"[U]pon a claim by a party aggrieved that evidence is

inadmissible because it is [derived from an illegal act],"

the government must "affirm or deny the occurrence of the

alleged unlawful act." 18 U.S.C. 3504; In re Grand Jury _________________

Proceedings, 786 F.2d 3, 7 (1st Cir. 1986) (citing cases). ___________

The witness/contemnor contends that the government in this

case failed to meet its burden of responding to the

allegation. Alternatively, he asserts the district court

erred in hearing testimony concerning the surveillance in __

camera. ______

A "purely conclusory denial" that an alleged unlawful

act occurred is not an adequate response to a 3504 claim.

In re Hodges, 524 F.2d 568, 570 (1st Cir. 1975). Rather, the ____________

government must show "that those responding were in a

position, by first hand-knowledge or through inquiry,

reasonably to ascertain whether or not relevant illegal

activities took place." In re Quinn, 525 F.2d 222, 225 (1st ___________

Cir. 1975). Moreover, an adequate response "require[s] . . .

that those conducting the grand jury proceeding affirm that

they have no knowledge of and have not in any way employed

other taps [than those revealed] in formulating lines of

inquiry to be posed to the witness." In re Mintzer, 511 F.2d _____________

-3-

471, 472 n.2 (1st Cir. 1974). In other words, in an adequate

response the government provides the court access to the

relevant materials supporting all wiretaps which the

government had or used concerning the witness. Id. at 473. ___

In response to the 3504 claim, the government

presented the sworn testimony of the case agent in charge of

the investigation that all the information obtained about the

witness/contemnor which was derived from electronic

surveillance came from surveillance pursuant to a warrant

already revealed to the district court. The district court

itself affirmed that it had previously held the warrant

lawful.

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USCA1 Opinion




January 11, 1996      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-2338


IN RE:



                                     GRAND JURY.


____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Selya, Cyr and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Peter J. Stelzer on brief for appellant.
            ________________

            Donald K.  Stern, United  States Attorney,  and Jeffrey  Auerhahn,
            ________________                                _________________

        Assistant United States Attorney, on brief for appellee.


____________________


____________________



Per Curiam.   Appellant grand jury witness  appeals
                      __________



            the district court order holding him in contempt for refusing



            to   answer   questions   before   a   grand   jury.      The



            witness/contemnor refused  to answer  on the ground  that the



            question  violated his  rights under  the  fourth amendment.1



            The  government  filed  a   petition  for  contempt  and  the



            witness/contemnor responded  by filing a motion,  pursuant to



            18 U.S.C.   3504, seeking that the government "affirm or deny



            the existence  of any  and all electronic  surveillance which



            may be used as a basis, direct or indirect, for any questions



            to  be  put  to  the  witness."    After  hearing  in  camera
                                                               __  ______



            submissions  from   the  special  agent  in   charge  of  the



            investigation concerning the source of the questions directed



            to  the  witness, the  court held  the  witness had  no "just



            cause" for  refusing to comply  with the  immunity order  and



            held  him in  contempt.   The witness/contemnor  appeals this



            contempt order.2  We affirm.



                 A  grand jury  witness  who refuses  to testify  without



            "just cause"  may be  held in  civil contempt.   18 U.S.C.   



            1826(a).   However, a showing that the questions addressed to



            the  witness were  based on  illegal electronic  surveillance


____________________



            1.   This  court has  held that  the rights  of a  grand jury

            witness  to  refuse  to  answer questions  based  on  illegal

            surveillance "depend exclusively on [18 U.S.C.   3504]."   In
                                                                       __

            re Mintzer, 511 F.2d 471, 473 (1st Cir. 1974).
            __________



            2.   This court granted  the witness/contemnor's motion to be

            released pending disposition of this appeal.



constitutes "just cause" for refusal to testify and precludes



            a finding of contempt.  Gelbard v. United States, 408 U.S. 41
                                    _______    _____________



            (1972);  In  re  Doe, 988  F.2d  211,  213  (1st Cir.  1992).
                     ___________



            "[U]pon  a  claim  by  a  party  aggrieved  that  evidence is



            inadmissible because  it is  [derived from an  illegal act],"



            the government  must "affirm or  deny the  occurrence of  the



            alleged unlawful act."   18 U.S.C.    3504; In re Grand  Jury
                                                        _________________



            Proceedings,  786 F.2d 3,  7 (1st Cir.  1986) (citing cases).
            ___________



            The  witness/contemnor contends that  the government  in this



            case  failed  to  meet  its  burden   of  responding  to  the



            allegation.   Alternatively, he  asserts  the district  court



            erred  in hearing  testimony concerning  the  surveillance in
                                                                       __



            camera.
            ______



                 A "purely  conclusory denial"  that an  alleged unlawful



            act occurred  is not an adequate response  to a   3504 claim.



            In re Hodges, 524 F.2d 568, 570 (1st Cir. 1975).  Rather, the
            ____________



            government  must  show  "that  those  responding  were  in  a



            position,  by   first  hand-knowledge  or   through  inquiry,



            reasonably  to ascertain  whether  or  not  relevant  illegal



            activities took place."  In re Quinn, 525  F.2d 222, 225 (1st
                                     ___________



            Cir. 1975).  Moreover, an adequate response "require[s] . . .



            that those  conducting the grand jury  proceeding affirm that



            they have  no knowledge of  and have not in  any way employed



            other  taps [than  those  revealed] in  formulating lines  of



            inquiry to be posed to the witness."  In re Mintzer, 511 F.2d
                                                  _____________


-3-



471, 472 n.2 (1st Cir. 1974).  In other words, in an adequate



            response  the government  provides  the court  access to  the



            relevant   materials  supporting   all  wiretaps   which  the



            government had or used concerning the witness.  Id. at 473.  
                                                            ___


In  response  to  the      3504  claim,  the  government



            presented  the sworn testimony of the case agent in charge of



            the investigation that all the information obtained about the



            witness/contemnor   which   was   derived   from   electronic



            surveillance  came from  surveillance  pursuant to  a warrant



            already revealed to  the district court.  The  district court



            itself  affirmed  that it  had  previously  held the  warrant



            lawful.   The agent also  swore that he  had been responsible



            for  all communications  between  the  investigators and  the



            prosecutor in this  case.  The  agent was thus in  a position



            reasonably  to ascertain whether  any illegal  activities had



            taken  place in  the investigation.   A  subsequent affidavit



            requested  by this  court, see  Grand Jury v.  Gassiraro, 918
                                       ___  __________     _________



            F.2d  1013,  1016  (1st  Cir.  1990), and  submitted  by  the



            attorney  in charge  of the  investigation,  see id.  at 1015
                                                         ___ __



            (finding  an affirmance  by  the  attorney investigating  and



            formulating  the  questions   to  the  witness   particularly



            significant) (citing cases), "put to rest any lingering doubt



            we had  about the adequacy of [the] response," In re Tse, 748
                                                           _________



            F.2d 722, 728 (1st Cir. 1984) (footnote omitted). 


-4-



Nor  do we find any error in the district court decision



            to  hear  sworn  testimony  concerning  the  surveillance  in
                                                                       __



            camera.     The  district   court  has  wide   discretion  in
            ______



            determining whether  or  not  to  withhold  the  government's



            submissions concerning  other surveillance from a witness who



            raises a    3504 claim,  In re Doe, 988  F.2d at 214 n.3, and
                                     _________



            similar  in camera  submissions  have been  approved by  this
                     __ ______



            court, see, e.g., id.; In re Grand Jury Proceedings, 786 F.2d
                   ___  ___   __   ____________________________



            at 7.  Having reviewed  the submissions, we find no abuse  of



            discretion in this case.



                 The contempt order is affirmed.
                                       ________


-5-

In Re: v. Grand Jury, (1st Cir. 1996).

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Gelbard v. United States

408 U.S. 41 (Supreme Court, 1972)

In Re Lionel Mintzer

511 F.2d 471 (First Circuit, 1974)

In Re Alfred L. Hodges, Jr.

524 F.2d 568 (First Circuit, 1975)

In Re John Herbert Quinn

525 F.2d 222 (First Circuit, 1975)

In Re Grand Jury Proceedings, Appeal of Carol Hill

786 F.2d 3 (First Circuit, 1986)

In Re Grand Jury Proceedings, Doe

988 F.2d 211 (First Circuit, 1992)

Opinion

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