In Re: Grand Jury Investigation Doe v. United States ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: GRAND JURY INVESTIGATION, 
2003R01576. No. 05-17136
D.C. No.
JOHN DOE,
Witness-Appellant,  CR-05-90295-SI
ORDER AND
v. AMENDED
UNITED STATES OF AMERICA, OPINION
Appellee.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Submitted December 5, 2005
Filed December 8, 2005
Amended February 8, 2006
Before: Alfred T. Goodwin, William A. Fletcher and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
1439
IN RE: GRAND JURY INVESTIGATION 1441
COUNSEL
Rita Hao, Gonzalez & Leigh, LLP, San Francisco, California,
for the appellant.
Elise Becker, Office of the United States Attorney, San Fran-
cisco, California, for the appellee.
ORDER
The Opinion filed on December 8, 2005, and appearing at
430 F.3d 1227 (9th Cir. 2005) is hereby amended, and the
amended Opinion will be filed concurrently with this Order.
1442 IN RE: GRAND JURY INVESTIGATION
With the Opinion as amended, the panel has voted to deny
Appellant’s Petition for Rehearing.
The Petition for Rehearing is DENIED.
Further petitions for rehearing or for rehearing en banc will
be entertained by this court.
OPINION
PER CURIAM:
John Doe appeals the district court’s order holding him in
civil contempt pursuant to 28 U.S.C. § 1826. We have juris-
diction pursuant to 28 U.S.C. § 1291. We review the district
court’s finding of contempt for abuse of discretion, see In re
Grand Jury Proceedings (Lahey), 914 F.2d 1372, 1373 (9th
Cir. 1990) (per curiam), and affirm.1
I.
Doe argues that the district court erred by holding him in
contempt for his refusal to answer the questions posed to him
by the government before the grand jury. Specifically, Doe
contends that the government did not meet its burden of proof
in responding to his allegations that he has been the subject
of illegal surveillance.
[1] “A grand jury witness may refuse to answer questions
based on the illegal interception of his communication.” In re
Grand Jury Proceedings (Garrett), 773 F.2d 1071, 1072 (9th
Cir. 1985) (per curiam) (citing 18 U.S.C. § 3504 and Gelbard
v. United States, 408 U.S. 41, 52 (1972)). See also 18 U.S.C.
1
Although 28 U.S.C. § 1826(b) requires disposition of an appeal within
30 days and this opinion is being filed after the expiration of this time
limit, Doe has waived the 30-day deadline.
IN RE: GRAND JURY INVESTIGATION 1443
§ 2515. “If the witness makes a preliminary showing that he
was a victim of illegal electronic surveillance, the government
must unequivocally affirm or deny the use of such surveil-
lance.” Garrett, 773 F.2d at 1072. However, the specificity
required of the government’s response is measured by the
specificity and strength of the witness’s allegations. See id.Thus, “[a] witness’ general or unsupportable claim requires
only a general response.” In re Grand Jury Proceedings
(Garcia-Rosell), 889 F.2d 220, 223 (9th Cir. 1989) (per
curiam).
II.
Doe submitted two declarations to make his preliminary
showing that he was a victim of unlawful surveillance. The
first declaration, received by the district court on September
27, 2005, alleges generally and without factual support that
Doe was the subject of unlawful surveillance. The second
declaration, filed October 12, 2005, states, in pertinent part,
that Doe has heard “clicks” during phone calls made to or
from the telephone number he uses. It also states that the legal
mail Doe has exchanged with an attorney has been intercepted
on two occasions. For example, the mail has been delivered
separately from the regular mail and, on another occasion, on
a postal holiday when there was no regular mail delivery.2 In
response, the government submitted two declarations. The
first of these was made by the assistant U.S. attorney assigned
to this case (“the AUSA declaration”), and states that neither
the decision to call Doe before the grand jury nor the ques-
tions asked of him “were the product of or based upon the
exploitation of any electronic surveillance.” The second dec-
laration was made by an FBI agent assigned to the case (“the
FBI agent declaration”), and states generally that the govern-
ment is unaware of any electronic surveillance of Doe.
2
In his second declaration, Doe also posits that some of the questions
asked by the government, such as questions regarding his current and past
addresses and phone numbers, could have been “guided by information”
gleaned from electronic sources.
1444 IN RE: GRAND JURY INVESTIGATION
[2] As the district court found, Doe’s two declarations suf-
fice as “a preliminary showing that he was a victim of illegal
electronic surveillance.” Garrett, 773 F.2d at 1072. We have
serious doubts regarding the adequacy of the FBI agent decla-
ration in rebutting Doe’s claims. The FBI agent declaration
does not “unequivocally affirm or deny the use of such sur-
veillance.” Id. Rather, it is based on hearsay testimony of an
unnamed electronic surveillance technician in the San Fran-
cisco FBI field office and only unequivocally attests to the
absence of surveillance records “maintained by the FBI” inso-
far as known to that technician. Moreover, the FBI agent dec-
laration concedes that there is a “well-established practice” of
federal, state and local law enforcement agencies cooperating
with the FBI, but the declaration addresses the possibility that
such other agencies may have been surveilling Doe only with
the statement that the FBI agent is “unaware of any electronic
surveillance involving Mr. Doe conducted by any other law
enforcement agency.” This falls short of an unequivocal
denial.
III.
[3] Given the generic nature of the questions asked of Doe
during his September 21, 2005 appearance before the grand
jury, and in light of the information already known to the gov-
ernment independent of any unlawful surveillance, we hold
that Doe cannot invoke 18 U.S.C. § 3504 as a defense to the
district court’s judgment finding him in civil contempt. He
has not shown that the government’s questions were the “pri-
mary product” of unlawful surveillance or were “obtained by
the exploitation” of any unlawful surveillance. 18 U.S.C.
§ 3504(a)(1). Our previous cases have assumed an arguable
causal connection between the questions being posed to the
grand jury witness and the alleged unlawful surveillance. See,
e.g., Worthington v. United States, 799 F.2d 1321, 1323 (9th
Cir. 1986) (“A federal grand jury witness may refuse to
answer questions, or to respond to requests to produce testi-
monial evidence, derived from the illegal interception of his
IN RE: GRAND JURY INVESTIGATION 1445
or her communications.”) (emphasis added); Garrett, 773
F.2d at 1072 (“A grand jury witness may refuse to answer
questions based on the illegal interception of his communica-
tion.”) (emphasis added). Cf. In re Grand Jury Witness (Whit-
nack), 544 F.2d 1245, 1246-47 (9th Cir. 1976) (“Because the
appellant has suggested no causal connection between any
monitoring of her friend’s telephone and the grand jury’s
request for the evidence sought to be produced, we do not
reach the question of the appellant’s standing to challenge the
eavesdropping, if any, of a telephone she does not claim as
her own or even allege she ever used.”).
This does not shift the burden to the federal grand jury wit-
ness to prove that unlawful surveillance has taken place.
Rather, the grand jury witness is merely obliged to make a
“preliminary showing that he or she was the victim of illegal
electronic surveillance.” Worthington, 799 F.2d at 1323.
However, there must be some arguable causal connection,
apparent on the face of the witness’s allegation, between the
questions being posed to the grand jury witness and the
alleged unlawful surveillance.
[4] The government already had a legitimate independent
basis to consider Doe a person of interest in the investigation
that led to the grand jury proceedings at issue in this case.
Doe was detained by FBI officers after he was observed
inspecting the premises of the prime suspect in an investiga-
tion. He concedes that he cooperated with the FBI after his
detention and provided them with substantially all of the
information the government sought to elicit from him under
oath before the grand jury. The nature of the questions posed
to Doe before the grand jury is so generic that the questions
do not suggest any reliance on surveillance of any sort.
Indeed, the AUSA declaration specifically states that the
questions the AUSA asked were neither “the primary product
[n]or based upon the exploitation of any electronic surveil-
lance.” Although this statement is conclusory, the nature of
the questions posed to Doe confirms the statement’s suffi-
1446 IN RE: GRAND JURY INVESTIGATION
ciency here. Accordingly, we affirm the district court’s find-
ing Doe in contempt for refusing to answer the specific
questions at issue.
IV.
[5] For these reasons, the district court’s contempt order is
affirmed. We hold that Doe is in contempt of court for refus-
ing to comply with the grand jury subpoena dated June 22,
2005. Doe can purge himself of contempt by answering the
questions posed to him by the government before the grand
jury on September 21, 2005.
AFFIRMED.3
3
In light of this holding, Doe’s alternative request that the government
be restricted in its line of questioning is denied. We note, however, that
if the government strays from its previous lines of questioning and poses
a question that appears likely to be derived from illegal surveillance, Doe
might have a valid reason for refusing to answer. See In re Bacon, 466
F.2d 1196, 1197 (9th Cir. 1972) (per curiam) (“We find nothing in section
3504 which precludes a grand jury witness from invoking that procedure
at any time during the interrogation.”) (emphasis added).