The opinion of the court was delivered by: Robson, Chief Judge.
MEMORANDUM AND ORDER ON MOTION TO VACATE JUDGMENTS OF CONTEMPT
These two witnesses before the Special February 1971 Grand
Jury move to vacate judgments of contempt and commitment
entered against them by this court on May 25, 1971. For the
reasons stated below, this court is of the opinion the motion
should be denied.
The witnesses claim that they were not afforded full
transactional immunity by the court's order pursuant to
18 U.S.C. § 2514. Specifically, they allege that the court lacks
jurisdiction under that statute to protect them from
prosecution under the Internal Revenue laws. This contention is
not supported by the following unequivocal language of the
"No such witness [granted immunity under § 2514]
shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction,
matter or thing concerning which he is
compelled * * * to testify or produce
evidence * * *." 18 U.S.C. § 2514. (Emphasis
There can be no doubt that these witnesses were "immunized"
against future prosecution under the Internal Revenue laws
insofar as any testimony in these grand jury proceedings is
concerned. The immunity order in issue was therefore as broad
as the rights of these witnesses against self-incrimination,
and the order clearly meets the standards of Counselman v.
Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892),
and its progeny. Moreover, the witnesses have failed to allege
or show that any question or questions propounded by the grand
jury were not remotely relevant to any offense enumerated in
18 U.S.C. § 2514 or 2516. Cf., Carter v. United States,
417 F.2d 384, 388 (9th Cir. 1969), Cert. den. 399 U.S. 935, 90
S.Ct. 2253, 26 L.Ed.2d 807 (1970); In re Vericker, 446 F.2d 244
(2nd Cir., 1971).
These witnesses complain that their rights under the
FourthAmendment were compromised by the court's order
compelling them to testify and produce evidence because no
showing of probable cause has been made by the grand jury.
These witnesses rely on the recent decision In re Dionisio,
442 F.2d 276 (7th Cir. 1971) to support their contention that
the court's order upon them to testify and produce evidence
requested by the grand jury constitutes an unreasonable search
within the prohibition of the Fourth Amendment. Reliance on
the Dionisio decision is misplaced. There, the United States
Court of Appeals for the Seventh Circuit held that an order
compelling witnesses before a grand jury, appearing without
benefit of an immunity order, to furnish voice exemplars for
identification purposes was unreasonable. Here, the grand jury
has not yet requested these witnesses to produce any physical
evidence, rendering their Fourth Amendment objections
premature. Nor do these witnesses object to any particular
question asked of them as an "unreasonable search." It is
beyond question that a grand jury need not establish probable
cause merely to subpoena and question witnesses. In re
Dionisio, supra, at 281. Absent specific showing of an
unreasonable search, the court's order directing these
witnesses to testify and to produce such evidence as may be
requested by the grand jury cannot be said to violate their
Fourth Amendment rights.
The witnesses further claim that their rights under the
Fourth Amendment were violated because they were subjects of
illegal surveillance by the Government. Specifically, they
allege that such surveillance either led to the issuance of
the subpoenas for their appearance before the grand jury or
constituted the source of the United States Attorney's
information concerning them. A hearing is requested, so that
these witnesses may question agents of the Federal Bureau of
Investigation and the Internal Revenue Service "who would have
pervasive knowledge of invasions of Fourth Amendment rights by
electronic or mechanical devices."
The allegation that these witnesses were subjects of illegal
surveillance is conclusory and devoid of any factual support.
Unlike the situation posed In re Egan, 450 F.2d 199 (3rd Cir.,
1971), the United States Attorney has filed a letter stating
that a search of the files of the Department of Justice and
the Internal Revenue Service discloses no information that
these witnesses were at any time overheard by electronic
surveillance or that premises known to be owned, leased or
licensed by these individuals were subjected to electronic
surveillance. Government's Answer, Exhibit A. The witnesses
respond that the Government's statement is insufficient. This
court does not agree.
Even those circuits which afford an evidentiary hearing to
a witness who raises the issue whether grand jury questions
were the product of illegal surveillance have held that a
negative representation, such as that made by the Government
here, is sufficient to rebut the conclusory allegation that
such surveillance occurred. In re Evans and Fishlowitz,
452 F.2d 1239 (D.C. Cir., 1971); In re Egan, supra. Furthermore,
the United States Court of Appeals for the Ninth Circuit has
held that a grand jury witness lacks standing to challenge the
source of the grand jury's information, even be that alleged
source illegal surveillance. Russo v. U.S., 448 F.2d 369 (9th
Cir., 1971); Bacon v. United States, 446 F.2d 667 (9th Cir.,
1971); Carter v. United States, 417 F.2d 384 (9th Cir. 1969),
cert. den. 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970).
In any event, the United States Court of Appeals for the
Seventh Circuit has never authorized wholesale inquiry by a
grand jury witness into the source of the grand jury's
information concerning him. In view of the Government's
representations that these witnesses and their premises were
never subjects of electronic surveillance, and in the absence
of specific allegations to the contrary, this court is of the
opinion that these witnesses lack standing under Alderman v.
United States, 394 U.S. 165, 185, 89 S.Ct. 961, 22 L.Ed.2d 176
(1969), to inquire further by means of an evidentiary hearing.
Moreover, the request to question Government personnel ...