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In re Special February

decided: February 2, 1978.

IN THE MATTER OF SPECIAL FEBRUARY, 1977 GRAND JURY; APPEAL OF ALFRED PAVONE


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 GJ 1631 - James B. Parsons, Judge.

Cummings, Sprecher, and Wood, Circuit Judges.

Author: Per Curiam

Alfred Pavone, subpoenaed as a witness before the Special February, 1977 Grand Jury of the Northern District of Illinois, was thereafter found to be a recalcitrant witness by the district court, held in contempt, and ordered confined pursuant to Title 28, U.S.C. § 1826(a).*fn1 On appeal, Pavone raises two major issues. He asserts as a defense to the contempt charge that the questions he was asked before the grand jury were based on information obtained through illegal electronic surveillance, and therefore his refusal to answer was justified. Pavone further argues that he was entitled to full discovery of materials possessed by the government relating to the authorization and execution of the electronic surveillance. Secondly, Pavone challenges the manner in which the contempt hearing was conducted, which included an in camera inspection of the wire interception documents before the same judge, Chief Judge Parsons, who initially authorized the wire interception. We affirm.*fn2

The issues arose in this manner. Pavone responded to the grand jury subpoena on October 20, 1977, but refused to answer the questions propounded by asserting his Fifth Amendment privilege against self-incrimination. On November 17, 1977, pursuant to a petition filed by the government the district judge entered an order granting Pavone immunity according to the provisions of §§ 6002 and 6003, Title 18, U.S.C. Pavone was ordered to appear again before the grand jury. Upon his second appearance, Pavone again refused to answer the questions propounded by stating that the "inquiry is based upon illegal electronic surveillance obtained by violation of Title 18 of the United States Code, Section 2510, and the following sections and in particular, Section 2515 and also because my answer could incriminate me." The government responded by filing a petition for contempt. At the hearing on the petition on December 15, 1977, the government conceded that Pavone had been the subject of a wiretap authorized by the court pursuant to the provisions of §§ 2516 and 2518, Title 18, U.S.C., and that the questions propounded to Pavone before the grand jury were the result of Pavone's intercepted communications. Pavone answered alleging that the wire interceptions were violative of one or more of the various statutory requirements, at other times were accomplished without any court order, and moved for full discovery. Sought by Pavone was the opportunity to hear all the original tape recordings of the intercepted conversations, and the opportunity to examine the transcripts of the conversations, also any logs or summarizations or reports quoting the intercepted communications, copies of affidavits and applications for court authorizations, copies of any periodic reports of the agents intercepting the conversations, and the order of the court authorizing the interception. The discovery requested was denied. The trial judge found that Pavone's conclusionary allegations of unlawful interceptions were nothing more than conjecture and suspicion, but did undertake an in camera examination of the documents relating to the wire interception which had been previously authorized. The court found no necessity for an extended hearing.

On December 21, 1977, the trial judge advised the parties that he had examined the petitions upon which the wire interception authorizations were based and found that they were sufficient in fact and in law. He further found that the supporting affidavits were abundantly sufficient. In addition, the judge informed the parties that he had reviewed the grand jury transcripts and found that the questions which had been propounded before the grand jury originated from the authorized wire interceptions. Further, the court found that the interceptions had been carried out in conformity with the authority granted.

After giving Pavone ample opportunity to avoid contempt by responding to the grand jury inquiries, the court adjudged Pavone to be in contempt and ordered him confined in accordance with § 1826(a), Title 28 U.S.C. Pavone's related motions to quash grand jury subpoena, to suppress and for continuance, were denied.

Our resolution of the issues must begin with consideration of Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972). In that case the majority assumed that the government had illegally intercepted communications of the grand jury witness and that the testimony sought was derived from the interceptions in violation of the statute.*fn3 The "narrow question" remaining was whether under those circumstances a grand jury witness could invoke the prohibition of § 2515, Title 18 U.S.C., as a defense to contempt charges brought on the basis of the refusal of the witness to obey a court order to testify.*fn4 The Court found it unnecessary to decide if the witness could refuse to answer had the interception been pursuant to a court order. In his concurring opinion, Justice White comments on the question left open:

Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. 408 U.S. at 70.

In his dissent, Mr. Justice Rehnquist anticipates the further problem of whether or not Congress intended to engraft on the traditional and rather summary contempt hearing a new type of hearing in which a grand jury witness is permitted discovery of the government's applications, orders, tapes, and transcripts relating to electronic surveillance. 408 U.S. at 75. Justice Rehnquist finds time-consuming challenges by witnesses during the course of a grand jury investigation to be inimical to its functioning. 408 U.S. at 77.

Later in United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), not a wire interception case, the Court, evidencing concern for undue obstruction of the public interest in an effective grand jury process, held that a witness before a grand jury may not refuse to answer questions on the ground that the questions resulted from evidence obtained from an unlawful search and seizure. The grand jury institution, functioning under judicial supervision, is helpfully reviewed. 414 U.S. 342-46.

Pavone, relying on § 2518 (10)(a), Title 18 U.S.C.,*fn5 moved to suppress the grand jury subpoena and the intercepted communications. We do not read the majority opinion in Gelbard, deciding only the "narrow issue," as mandating that whenever a grand jury witness seeks the protection of Section 2515 full discovery and an evidentiary hearing are automatically required. In any event, Congress provided that discovery of the contents of the interceptions is controlled by the judge's discretion. See note 5, supra.

In In Re Persico, 491 F.2d 1156 (2d Cir. 1974), cert. denied, 425 U.S. 924, 95 S. Ct. 199, 42 L. Ed. 2d 158 (1974), similar discovery and hearing issues were considered. That court after considering the legislative history of the wire interception statute*fn6 concluded that an immunized witness is not entitled to a hearing or a motion to suppress during the course of the grand jury proceedings. Refusal of a witness to testify is justified, it is held, only in circumstances where there is no authorizing court order, or the government concedes the surveillance was not in conformity with the statute, or where there was a prior judicial determination to that effect. That court concluded that inasmuch as the trial judge had considered in camera the wire interception documents to determine statutory compliance, the witness had received all he was entitled to.

In addition to the Second Circuit, it appears that the Third, Fifth, and Ninth Circuits generally approve somewhat similar limitations. United States v. D'Andrea, 495 F.2d 1170 (3rd Cir. 1974), cert. denied, 419 U.S. 855, 42 L. Ed. 2d 88, 95 S. Ct. 101; United States v. Worobyzt, 522 F.2d 196 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1507, 47 L. Ed. 2d 761; Droback v. United States, 509 F.2d 625 (9th Cir. 1974), cert. denied, 421 U.S. 964, 44 L. Ed. 2d 450, 95 S. Ct. 1952; In Re Gordon, 534 F.2d 197 (9th Cir. 1976). But see In Re Lochiatto, 497 F.2d 803 (1st Cir. 1974); Melickian v. United States, 547 F.2d 416 (8th Cir. 1977), cert. denied, 430 U.S. 986, 52 L. Ed. 2d 381, 97 S. Ct. 1684.

The accommodation between grand jury and statute mentioned by Justice White, 408 U.S. at 70, we believe, was fairly accomplished in the present case. The witness was immunized, although this relates to the Fifth, not Fourth, Amendment. The vital circumstance is that the electronic surveillance was court approved. All the electronic surveillance documents were examined by the trial judge in camera and found to comply with the statute. The questions propounded ...


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