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In re Korman

decided: June 8, 1973.

IN THE MATTER OF JACK KORMAN AND ROBERT W. LIKAS, WITNESSES BEFORE THE SPECIAL FEBRUARY 1971 GRAND JURY, APPELLANTS,
v.
UNITED STATES OF AMERICA, APPELLEE. UNITED STATES EX REL. JACK KORMAN AND ROBERT W. LIKAS, PETITIONERS-APPELLANTS, V. THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF ILLINOIS AND THE UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF ILLINOIS, RESPONDENTS-APPELLEES



Mr. Justice Clark,*fn* Duffy, Senior Circuit Judge and Kiley, Circuit Judge.

Author: Duffy

DUFFY, Senior Circuit Judge.

There are two appeals before us for our consideration. These have been consolidated in this Court in order to expedite the appeal in each.

On April 20, 1971, appellants Korman and Likas were found to be in civil contempt of the Court by a District Judge under 28 U.S.C. § 1826(a) for refusing "without just cause shown to comply with an order of the court to testify" before the Special February 1971 Grand Jury convened in Chicago, Illinois. Initially, the appellants herein refused to testify asserting their Fifth Amendment privilege against self-incrimination. Each defendant was granted immunity pursuant to 18 U.S.C. § 6002. They remained silent contending that the use immunity conferred by the statute was inadequate to supplant their Fifth Amendment privileges.

An appeal was taken to this Court and we reversed the District Court, holding that only full transactional immunity is sufficient to supplant the privilege against self-incrimination. In Re Korman, 449 F.2d 32 (7th Cir. 1971). Thereafter, the Supreme Court granted certiorari and summarily reversed our Court's holding relying on Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).*fn1

On July 17, 1972 the District Court extended the term of the Special February 1971 Grand Jury for a period of six months pursuant to the provisions of 18 U.S.C. § 3331(a).*fn2

On August 15, 1972 while still free on bail during the pendency of the District Court's consideration of their contempt citations, motions were filed on behalf of the appellants declaring the necessity of a hearing in the District Court to determine whether they had been the subjects of illegal governmental electronic surveillance. In the "Motion for Production of Reports of Electronic Surveillance" and the "Motion to Stay Mittimus," the appellants (petitioners therein) alleged that because the Solicitor General had refused to answer their inquiries with respect to the utilization of electronic surveillance in gathering information for the Special February 1971 Grand Jury, they therefore had reason to believe that they had, in fact, been so subjected.*fn3

On the same date the motions were filed and a hearing on the same held, the United States Department of Justice filed in District Court a letter dated August 7, 1972 from Henry E. Petersen, Assistant Attorney General, to Sheldon Davidson of the Chicago Strike Force denying that conversations of the appellants had been overheard by the Department of Justice by means of electronic surveillance. The letter disclosed that the Internal Revenue Service had utilized a pen register on the telephone of appellant Likas from February 8 to May 22, 1963, but no conversations were monitored at that time or any subsequent time. The letter mentioned conversations between one Phillip Stollman and an individual calling himself Jack Korman overheard on an extension phone by an Internal Revenue Service agent in Stollman's office and with Stollman's consent on October 18 and 20, 1961. With respect to both appellants, the letter indicated no further electronic surveillance or monitorings of their conversations had been conducted by the Internal Revenue Service.

The letter concluded with a statement that the appellants had never been subjected to electronic surveillance by the United States Secret Service, the United States Postal Service, the Bureau of Alcohol, Tobacco and Firearms or the Bureau of Narcotics and Dangerous Drugs.*fn4

The District Court, 351 F. Supp. 325, denied the motions of the appellants in a Memorandum Order and Opinion dated August 17, 1972 and directed that they be taken into custody for the contempt citations. The Court, in its decision, reasoned that a pen register was not within the scope of the Omnibus Crime Control and Safe Streets Act of 1968; that the letter of August 7, 1972 was firm and unequivocal in its denial of "interception" as construed under 18 U.S.C. § 2515; and, that it was bound by the decisions of this Court in Fraser v. United States, 452 F.2d 616 (7 Cir., 1971) and In Re Womack, 466 F.2d 555 (7 Cir., 1972) when considering the efficacy of the denials of the Department of Justice and the evidentiary value to be given such representations.

On August 25, 1972 two subsequent motions were filed by the appellants, one a "Motion to Reconsider Ruling of August 17, 1972", and the other, "Amendment to Stay Mittimus". The District Court denied the former motion and allowed appellants to file an amendment to the Motion to Stay Mittimus nunc pro tunc August 15, 1972 for purposes of appeal.

In said amendment, appellants asserted that,

"7. The response of the government is insufficient in law and fact in that:

a. The attachment pre-dates the claim under Title 18 U.S.C. §§ 2515 and 3504.

b. It does not constitute an affirmance nor denial contemplated by the Statutes above.

c. It does not constitute an "official denial." See concurring opinion, White, J., in Gelbard v. United States, [408 U.S. 41], 92 S. Ct. 2357 [33 L. Ed. 2d 179].

d. It does not cover the use of pen registers or similar devices.

"8. That assuming, arguendo, pen registers and similar devices are not within the ban of Title ...


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