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USCA1 Opinion
January 11, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2338
IN RE:
GRAND JURY.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Lynch,
Circuit Judges. ______________
____________________
Peter J. Stelzer on brief for appellant. ________________
Donald K. Stern, United States Attorney, and Jeffrey Auerhahn, ________________ _________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Appellant grand jury witness appeals __________
the district court order holding him in contempt for refusing
to answer questions before a grand jury. The
witness/contemnor refused to answer on the ground that the
question violated his rights under the fourth amendment.1
The government filed a petition for contempt and the
witness/contemnor responded by filing a motion, pursuant to
18 U.S.C. 3504, seeking that the government "affirm or deny
the existence of any and all electronic surveillance which
may be used as a basis, direct or indirect, for any questions
to be put to the witness." After hearing in camera __ ______
submissions from the special agent in charge of the
investigation concerning the source of the questions directed
to the witness, the court held the witness had no "just
cause" for refusing to comply with the immunity order and
held him in contempt. The witness/contemnor appeals this
contempt order.2 We affirm.
A grand jury witness who refuses to testify without
"just cause" may be held in civil contempt. 18 U.S.C.
1826(a). However, a showing that the questions addressed to
the witness were based on illegal electronic surveillance
____________________
1. This court has held that the rights of a grand jury
witness to refuse to answer questions based on illegal
surveillance "depend exclusively on [18 U.S.C. 3504]." In __
re Mintzer, 511 F.2d 471, 473 (1st Cir. 1974). __________
2. This court granted the witness/contemnor's motion to be
released pending disposition of this appeal.
constitutes "just cause" for refusal to testify and precludes
a finding of contempt. Gelbard v. United States, 408 U.S. 41 _______ _____________
(1972); In re Doe, 988 F.2d 211, 213 (1st Cir. 1992). ___________
"[U]pon a claim by a party aggrieved that evidence is
inadmissible because it is [derived from an illegal act],"
the government must "affirm or deny the occurrence of the
alleged unlawful act." 18 U.S.C. 3504; In re Grand Jury _________________
Proceedings, 786 F.2d 3, 7 (1st Cir. 1986) (citing cases). ___________
The witness/contemnor contends that the government in this
case failed to meet its burden of responding to the
allegation. Alternatively, he asserts the district court
erred in hearing testimony concerning the surveillance in __
camera. ______
A "purely conclusory denial" that an alleged unlawful
act occurred is not an adequate response to a 3504 claim.
In re Hodges, 524 F.2d 568, 570 (1st Cir. 1975). Rather, the ____________
government must show "that those responding were in a
position, by first hand-knowledge or through inquiry,
reasonably to ascertain whether or not relevant illegal
activities took place." In re Quinn, 525 F.2d 222, 225 (1st ___________
Cir. 1975). Moreover, an adequate response "require[s] . . .
that those conducting the grand jury proceeding affirm that
they have no knowledge of and have not in any way employed
other taps [than those revealed] in formulating lines of
inquiry to be posed to the witness." In re Mintzer, 511 F.2d _____________
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471, 472 n.2 (1st Cir. 1974). In other words, in an adequate
response the government provides the court access to the
relevant materials supporting all wiretaps which the
government had or used concerning the witness. Id. at 473. ___
In response to the 3504 claim, the government
presented the sworn testimony of the case agent in charge of
the investigation that all the information obtained about the
witness/contemnor which was derived from electronic
surveillance came from surveillance pursuant to a warrant
already revealed to the district court. The district court
itself affirmed that it had previously held the warrant
lawful. The agent also swore that he had been responsible
for all communications between the investigators and the
prosecutor in this case. The agent was thus in a position
reasonably to ascertain whether any illegal activities had
taken place in the investigation. A subsequent affidavit
requested by this court, see Grand Jury v. Gassiraro, 918 ___ __________ _________
F.2d 1013, 1016 (1st Cir. 1990), and submitted by the
attorney in charge of the investigation, see id. at 1015 ___ __
(finding an affirmance by the attorney investigating and
formulating the questions to the witness particularly
significant) (citing cases), "put to rest any lingering doubt
we had about the adequacy of [the] response," In re Tse, 748 _________
F.2d 722, 728 (1st Cir. 1984) (footnote omitted).
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Nor do we find any error in the district court decision
to hear sworn testimony concerning the surveillance in __
camera. The district court has wide discretion in ______
determining whether or not to withhold the government's
submissions concerning other surveillance from a witness who
raises a 3504 claim, In re Doe, 988 F.2d at 214 n.3, and _________
similar in camera submissions have been approved by this __ ______
court, see, e.g., id.; In re Grand Jury Proceedings, 786 F.2d ___ ___ __ ____________________________
at 7. Having reviewed the submissions, we find no abuse of
discretion in this case.
The contempt order is affirmed. ________
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Document Info
Docket Number： 95-2338
Filed Date： 1/11/1996
Precedential Status： Precedential
Modified Date： 9/21/2015