Swygert, Chief Judge, and Stevens and Sprecher, Circuit Judges.
This appeal requires us to determine the scope of applicability of Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972).
In March, 1971, the relators, Womack and Robinson, appeared as witnesses in response to subpoenas before a grand jury of the Northern District of Illinois investigating interstate gambling. Each refused to testify on grounds of self-incrimination and was given "transactional immunity" under 18 U.S.C. § 2514 and ordered to testify. Upon their refusal, they were adjudged in civil contempt and were committed to custody on May 25, 1971. Application for emergency bail was denied by this court on June 3 and by Mr. Justice Marshall of the United States Supreme Court on July 6, 1971. This court denied relators' appeal of the contempt judgments as frivolous by order of June 17, 1971. The Supreme Court denied a petition for a writ of certiorari on October 12, 1971. Womack v. United States, 404 U.S. 850, 92 S. Ct. 86, 30 L. Ed. 2d 89.
While the petition for certiorari was pending, relators filed a new motion to vacate the judgments of contempt. The principal ground advanced was that "each of them, believe, and do aver on such belief, that they were subjects of an illegal surveillance, and that such surveillance either led to the issuance of the subpoenas for their appearance before the captioned Grand Jury or constituted the source of information that motivated the United States Attorney in his determination that the evidence of these relators, and each of them, was necessary to the public interest, all in violation of the Fourth Amendment rights. . . ." Relators also contended that they were entitled to an evidentiary hearing on the question of surveillance, that a grand jury witness cannot be compelled to testify absent a showing of probable cause, and that the transactional immunity afforded by the court order was not broad enough.
In response the government filed a letter from the Assistant Attorney General representing that "A review of the Department of Justice files discloses no information indicating that conversations of . . . James Robinson and John Alexander Womack were at any time overheard by electronic surveillance or that premises known to be owned, leased or licensed by these individuals were covered by electronic surveillance by the Federal Bureau of Investigation."*fn1
The district court, 333 F. Supp. 479, denied the motion to vacate the judgments of contempt. Thereafter, the government filed in this court a letter from the acting Assistant Attorney General stating that "the Department of Justice files discloses no information indicating that the above-named individuals [Robinson or Womack] or any premises known to be owned, leased or licensed by them, were the subject of pen register surveillance by the Federal Bureau of Investigation."
Inasmuch as the relators were given the broader "transactional" immunity rather than the "use immunity" which has been held to satisfy the Fifth Amendment, Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), their argument that the immunity granted was too narrow is without merit.
We rejected the argument that the Fourth Amendment requires a showing of probable cause or reasonableness before a witness may be compelled to testify before a grand jury in Fraser v. United States, 452 F.2d 616 (7th Cir. 1971).
More difficult of resolution is their argument that some person, other than either of them, had been the victim of illegal electronic and mechanical surveillance and that the fruit of that illegal act was employed against them in violation of their Fourth Amendment rights. Insofar as their constitutional rights are concerned, this issue was decided adversely to their contention in Alderman v. United States, 394 U.S. 165, 171-172, 89 S. Ct. 961, 965, 22 L. Ed. 2d 176 (1969), where Mr. Justice White, speaking for the Court, said:
"The exclusionary rule fashioned in Weeks v. United States, 232 U.S. 383 [, 34 S. Ct. 341, 58 L. Ed. 652] (1914), and Mapp v. Ohio, 367 U.S. 643 [, 81 S. Ct. 1684, 6 L. Ed. 2d 1081] (1961), excludes from a criminal trial any evidence seized from the defendant in violation of his Fourth Amendment rights. Fruits of such evidence are excluded as well. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-392 [, 40 S. Ct. 182, 183, 64 L. Ed. 319] (1920). Because the Amendment now affords protection against the uninvited ear, oral statements, if illegally overheard, and their fruits are also subject to suppression. Silverman v. United States, 365 U.S. 505 [, 81 S. Ct. 679, 5 L. Ed. 2d 734] (1961); Katz v. United States, 389 U.S. 347 [, 88 S. Ct. 507, 19 L. Ed. 2d 576] (1967).
"In Mapp and Weeks, the defendant against whom the evidence was held to be inadmissible was the victim of the search. However, in the cases before us each petitioner demands retrial if any of the evidence used to convict him was the product of unauthorized surveillance, regardless of whose Fourth Amendment rights the surveillance violated. At the very least, it is urged that if evidence is inadmissible against one defendant or conspirator, because tainted by electronic surveillance illegal as to him, it is also inadmissible against his codefendant or co-conspirator.
"This expansive reading of the Fourth Amendment and of the exclusionary rule fashioned to enforce it is admittedly inconsistent with prior cases, and we reject it. The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence."
The Alderman case would be dispositive of the relators' argument as it was framed before us -- a pure constitutional question. However, during our consideration of this appeal, the Supreme Court rendered its opinion in Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972), wherein the Court held that grand jury witnesses are entitled to invoke as a defense to contempt charges brought against them for refusing to testify a provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which directs that "whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury, . . . if the disclosure of that information would be in violation of this chapter." 18 U.S.C. § 2515.*fn2
Gelbard disposed of three cases -- United States v. Gelbard, 443 F.2d 837 (9th Cir. 1971), In re Egan, 450 F.2d 199 (3d Cir. 1971), and In re Walsh, 450 F.2d 231 (3d Cir. 1971) -- and four grand jury witnesses, Gelbard, Parnas, Egan and Walsh. Each of the witnesses claimed that his or her own conversations had been overheard by illegal wiretapping. Mr. Justice Brennan limited the majority holding at the outset by narrowly defining the issue: "Our inquiry, then, is whether a showing that interrogation would be based upon the illegal interception of the witness's communications constitutes a showing of 'just cause' that precludes a finding of contempt." 408 U.S. 45, 92 S. Ct. at 2360 ...