Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 GJ 1128 - James B. Parsons, Judge.
Fairchild, Chief Judge, Sprecher and Tone, Circuit Judges.
This is an appeal from orders entered by the district court finding Appellants Jose Lopez, Roberto Caldero and Pedro Archuleta*fn1 in civil contempt of court under the recalcitrant witness statute, Title 28 U.S.C. § 1826(a).*fn1a Appellants refused to take an oath before the grand jury or to submit handwriting exemplars, fingerprints, and photographs upon the grand jury's requests. Motions by the witnesses for bond pending appeal were denied by the district court as frivolous and taken for delay. 28 U.S.C. § 1826(b).*fn1b This Court denied bail.
During the last two years the Special February 1975 Grand Jury has been investigating terrorist bombings in the Northern District of Illinois. The bombings have been claimed by or identified with a group calling itself the Fuerzas Armadas Liberacion Nacional Puertorriquena (FALN).
On November 3, 1976 Chicago police and FBI agents discovered a "bomb factory" in an apartment located in the Westown section of Chicago. This discovery along with fingerprint evidence obtained at the scene and subsequent laboratory tests provided the focus for the grand jury's investigation.
Appellants*fn2 were subpoenaed in connection with this investigation. For nine months they sought to quash the subpoenas on various legal grounds, including claims of unlawful electronic surveillance, under-representation of Latinos on the grand jury master list, infiltration of the defense camp and assertions that the FBI and the United States Attorney had usurped the grand jury's proper function. Numerous hearings were conducted by the district court into these allegations. All appellants' motions were finally denied and they were directed to appear before the grand jury.
On July 27 and August 17, 1977 appellants appeared before the grand jury and refused to take the oath or to submit handwriting exemplars, fingerprints, and photographs as requested. Immediately after their refusal, Archuleta, Lopez and Caldero appeared before the district judge and persisted in refusing to submit to identification procedures despite the court's direct order to do so. The district court committed appellants to the custody of the United States Marshal for the Northern District of Illinois until such time as they obey the court's order or for the duration of the Special Grand Jury pursuant to Title 28 U.S.C. § 1826(b). This appeal followed.
During the pendency of this appeal, on September 7, 1977, the grand jury returned a four count indictment charging Carlos Alberto Torres and Oscar Lopez,*fn3 with a variety of explosives violations and conspiracy with others unknown to destroy buildings in the name of FALN.
II. First Amendment Claim
Appellants allege that the district court erred in refusing to allow them to show that the "dominant purpose" of the Special Grand Jury was political suppression of the Puerto Rican Independence Movement and an attempt to locate missing witnesses. Appellants claim that the primary reason for the subpoenas was appellants' exercise of First Amendment rights and that there was no valid connection between any legitimate subject matter of criminal investigation and information the grand jury could reasonably expect to obtain. Appellants view the subpoenas as part of "a massive program of illegal intrusion and unconstitutional invasion" including usurpation of the grand jury's role and subpoena power by the FBI.
Appellants proceed on the theory that the subpoenas and subsequent questioning pose a sufficiently serious interference with personal interests so that if done solely to suppress appellants' political beliefs, a violation of First Amendment rights would result. Assuming appellants' theory is correct without deciding its merits, we do not find appellants made their case. There is evidence in the grand jury transcripts of legitimate reasons for the grand jury subpoenas.
Evidence in the record shows that the government stated in open court and in the pleadings that the purpose of the Special February 1975 Grand Jury was "to identify, locate, produce evidence against and charge the perpetrators of a string of bombings which to date have resulted in serious personal injury and extensive property damage."*fn4 The Grand Jury foreman filed an affidavit on behalf of the grand jury stating that the grand jury's sole concern was the "investigation of crimes involving the unlawful use of explosives" and "is . . . unconcerned with political beliefs, political activities and free speech."*fn5 Furthermore, the district judge on two occasions reviewed the impounded grand jury transcripts and photographic and documentary evidence adduced before the grand jury and found that the grand jury was appropriately seeking evidence pursuant to the subpoenas in question and the record was devoid of any indication that the grand jury was ...