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 "with
pervasive knowledge of invasions of Fourth Amendment rights by
electronic or mechanical devices" is meaningless in the face
of the Government's representations.
OTHER CONSTITUTIONAL OBJECTIONS
In what can only be characterized as a "shotgun" assault,
these witnesses allege that the court's order upon them to
testify violates their rights secured under the Third, Sixth,
and Ninth Amendments. These contentions are so patently
frivolous in view of the facts and record before this court
that they do not merit discussion.
It is therefore ordered that the motion to vacate these
judgments of contempt and commitment be, and they are hereby
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