In Re: Grand Jury v. , 988 F.2d 211 ( 1992 )


Menu:
  • USCA1 Opinion









    March 25, 1993 Opinion 92-1906 has been reissued as
    PUBLISHED as of 3/25/93.


































































    November 4, 1992

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT



    ___________________


    No. 92-1906




    IN RE: GRAND JURY PROCEEDINGS
    JOHN DOE,
    Appellant.

    __________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. A. David Mazzone, U.S. District Judge]
    ___________________

    ___________________

    Before

    Breyer, Chief Judge,
    ___________
    Torruella and Cyr, Circuit Judges.
    ______________

    ___________________

    Robert L. Sheketoff and Sheketoff & Homan on brief for
    _____________________ __________________
    appellant.
    A. John Pappalardo, United States Attorney, Michael J.
    ___________________ ___________
    Tuteur and Ernest S. Dinisco, Assistant United States Attorneys,
    ______ __________________
    on brief for appellee.

    __________________

    __________________
























    Per Curiam. Agents of the federal government, in
    __________

    the course of conducting court-authorized electronic

    surveillance during a criminal investigation, intercepted

    communications which involved the appellant. The appellant

    later was called to testify before a federal grand jury

    sitting in the District of Massachusetts. He refused to do

    so, citing his Fifth Amendment privilege against self-

    incrimination. The government applied for and received a

    court order directing the appellant to testify and

    prohibiting the government from using his testimony or its

    fruits against him in a criminal prosecution. The appellant

    still refused to testify. The government petitioned for

    an order holding the appellant in civil contempt. 28 U.S.C.

    1826(a). It supported its petition with affidavits which

    said that the questions it intended to ask the appellant

    before the grand jury would be derived in part from the

    electronic surveillance mentioned above. The appellant then

    filed a "Motion for Disclosure of Electronic Surveillance

    Information" which asked the court to instruct the government

    to disclose certain information relevant to the government's

    request for permission to conduct that surveillance.

    Invoking the need for secrecy to protect the ongoing

    grand jury investigation, the government produced only

    abridged copies of the documents requested. The court

    conducted a contempt hearing at which it ruled on the

    adequacy of the government's response. Before the hearing,

















    the district judge had reviewed and compared the expurgated

    and unexpurgated versions of the documents. At the hearing,

    the judge ruled (a) that the government had "an obligation to

    preserve the secrecy of the grand jury," (b) that he did not

    see anything in the deleted material "that could be of value

    to [the appellant]," and (c) that after reviewing the

    unabridged documents he had concluded that the appellant

    "does not have any basis, that I can see, to challenge the

    validity and constitutionality of the [electronic

    surveillance]." The court ordered the appellant to testify,

    and when he again refused, judged him in contempt. An appeal

    followed.1

    I
    _

    A grand jury witness who refuses to testify without

    "just cause" may be held in civil contempt, and confined

    until he agrees to testify, or, if he persists in refusing,

    for the life of the court proceeding or the term of the grand


    ____________________

    1. The district court issued the contempt order on July 14,
    1992, and the appellant immediately filed his notice of
    appeal. This court docketed that appeal as No. 92-1859. On
    July 17, however, the appellant filed a motion for
    reconsideration in the district court. "[T]he filing of such
    a motion automatically cancels the effect of having earlier
    filed a notice of appeal." In re Public Service Co. of New
    ________________________________
    Hampshire, 898 F.2d 1, 3 (1st Cir. 1990). See also Griggs v.
    _________ ________ ______
    Provident Consumer Discount Co., 459 U.S. 56, 61 (1982)
    _________________________________
    (effect of Rule 59 motion on previously filed notice of
    appeal is that "appeal simply self-destructs").
    Consequently, the appellant voluntarily dismissed appeal No.
    92-1859 and filed this appeal. He also waived the
    requirement that recalcitrant witness appeals be decided
    within 30 days of the district court's contempt order.

    -4-















    jury, but in no event longer than eighteen months. 18 U.S.C.

    1826(a). A showing that the questions put to the witness

    were based on illegal electronic surveillance constitutes

    "just cause" for his refusal to testify and precludes a

    finding of contempt. Gelbard v. United States, 408 U.S. 41
    _______ _____________

    (1972); Grand Jury v. Gassiraro, 918 F.2d 1013, 1014 n.1 (1st
    __________ _________

    Cir. 1990) (per curiam). Thus, although 18 U.S.C.

    2518(10)(a) "gives no standing to a prospective grand jury

    witness to be heard on a motion to suppress, 2515 allows

    such a witness to assert, in defense of a contempt

    proceeding, the grounds enumerated in 2518(10)(a)(i), (ii),

    and (iii)." In re Lochiatto, 497 F.2d 803, 806 (1st Cir.
    ________________

    1974).2

    The witness' right to assert these defenses, however, is

    not unqualified. In particular, the availability of defenses

    challenging the legality of the electronic surveillance does

    not imply "unconditional accessibility to all facts which
    ___

    might be relevant. . . ." Id. at 807. The documents used to
    ___

    obtain an "intercept" order, the order itself, and the

    documents reflecting the results of the electronic

    surveillance, may contain "sensitive material" which, if


    ____________________

    2. Under 18 U.S.C. 2518(10)(a), an "aggrieved person" may
    challenge an intercepted wire or oral communication on the
    grounds that (i) the communication was unlawfully
    intercepted, (ii) the order of authorization or approval
    under which it was intercepted is insufficient on its face,
    and (iii) the interception was not made in conformity with
    the order of authorization or approval.

    -5-















    disclosed, would threaten the safety of witnesses or

    otherwise impede the grand jury proceedings or the

    government's investigation. Id.
    ___

    In order to achieve the "triple objective" of minimizing

    delay, securing the government's interest in secrecy, and

    protecting the witness' right to assert his statutory

    defenses, in Lochiatto we established the following ground
    _________

    rules. First, if the government does not object "upon

    grounds of harm due to breach of secrecy," the witness is

    entitled to inspect these limited materials: the authorized

    application of the Attorney General or his designate, 18

    U.S.C. 2516(1), the affidavits in support of the intercept

    order, the order itself, and an affidavit submitted by the

    government indicating the length of time the surveillance was

    conducted. Id. at 808. No evidence need be provided the
    ___

    defendant for the purpose of litigating the issues of truth

    of statements made by affiants or the "minimization" of

    federal officials in monitoring conversations. Id.
    ___

    Second, if the government does object to production on
    ____

    secrecy grounds, the district court must determine whether

    the secret information can be "successfully deleted or

    summarized and access to the excerpted material granted."

    Id. If the district court decides that "so much of the
    ___

    material is of a sensitive nature that revelation of any of

    it would prejudice the government, the court must then review



    -6-















    the material in camera to determine the constitutional and

    statutory validity of the application and the court order

    based on the warrants, and compliance by the government with

    the court ordered time limits on surveillance." Id. The
    ___

    district court has "wide discretion" in implementing these

    procedures.

    In this case, the district court gave the appellant all

    the protection that Lochiatto requires. It first ruled that
    _________

    the appellant "probably did not miss too much from the

    redacted to the unredacted, except . . . names and places."

    We see no abuse of discretion in this conclusion, or in the

    district court's decision not to "summarize" the redacted

    material for the appellant.

    At that point, having decided that the secret

    information could be "successfully" deleted (that is, deleted

    without destroying the appellant's ability effectively to

    prepare a defense), the court might have concluded its

    discussion, leaving it to the appellant to frame his own

    challenges to the legality of the electronic surveillance.

    Instead, the district judge went on to perform the latter

    half of the Lochiatto analysis, saying that he had reviewed
    _________

    the unabridged documents in camera, and that
    _________

    [t]he Attorney General's authorization has been
    provided. The justification has been provided.
    The affidavit has been provided. . . . [The
    appellant] does not have any basis, that I can see,
    to challenge the validity and constitutionality of
    the process. The electronic surveillance was


    -7-















    conducted pursuant to a court order and was
    authorized. That is not a basis for [the
    appellant] to refuse to testify.

    We can find no fault with this conjunctive approach. It

    provided the appellant with an added layer of protection,

    assuring him that the district court had reviewed the deleted

    material with his statutory defenses in mind. Where, as

    here, the deletions were fairly extensive if not

    qualitatively significant, the court's caution was laudable,

    and certainly not abusive of its wide discretion.3

    II
    __

    After the district court issued its contempt order, the

    appellant filed a notice of appeal, then moved for

    reconsideration in the district court. At the government's

    urging, the district court denied the motion on the ground

    that the filing of the appeal had divested it of jurisdiction


    ____________________

    3. The appellant's brief focuses on the district court's
    decision to withhold the government's affidavits "concerning
    the existence of other surveillances." It is true that when
    a witness challenges the legality of the government's
    electronic surveillance, the government must "affirm or deny
    the occurrence of the alleged unlawful act," 18 U.S.C.
    3504, and include in its response "an explicit assurance that
    all agencies providing information relevant to the inquiry
    were canvassed." In re Quinn, 525 F.2d 222, 226 (1st Cir.
    ___________
    1975). The appellant contends that the district court should
    not have withheld the affidavits containing this assurance.
    We have examined the materials in question: they contain
    potentially-sensitive information about the nature and scope
    of the government's investigation, and we therefore see no
    abuse of discretion in the district court's decision to
    examine them in camera. We find, moreover, that the
    __________
    affidavits gave the necessary assurance and adequately showed
    that the grand jury questions put to the appellant were not
    derived from any other electronic surveillance source.

    -8-















    to reconsider the contempt order. The government now

    concedes that this position was mistaken. But, whether or

    not the district court should have addressed the motion on
    ______

    its merits, we need not remand now for it to do so: we have

    considered the issues raised in the motion and find them to

    be of no aid to the appellant's cause.

    The motion to reconsider contained two substantive

    challenges to the legality of the electronic surveillance.

    Both concerned the memoranda through which responsible

    officials of the Justice Department authorized federal

    prosecutors in the field to apply for an intercept order.

    The record contains three such memoranda, one authorizing the

    initial application and two authorizing successive

    applications for extensions of the order. Each memorandum

    went out under the name of Robert Mueller, the Assistant

    Attorney General in charge of the Criminal Division, and each

    contained a line for Mr. Mueller's signature, but each

    memorandum was in fact signed by a different Deputy Assistant

    Attorney General in the Criminal Division: the first by

    Robert Bucknam, the second by Mark Richmond, the last by John

    Keeney.

    Out of this clay the appellant molded his arguments.

    First, he contended that the judge who issued the intercept

    order and its extensions "was misled as to the official who

    authorized the application[s]" because the authorization



    -9-















    memoranda "purported" to be from Assistant Attorney General

    Mueller, but were in fact signed by the various Deputy

    Assistants. Second, he noted that 18 U.S.C. 2516(1)

    empowers only those Deputy Assistants who have been

    "specially designated by the Attorney General" to authorize

    applications for intercept orders. The Attorney General's

    designation order under which these Deputy Assistants acted,

    No. 1348-89, named no names and instead designated by title

    "any Deputy Assistant Attorney General of the Criminal

    Division." Because the order thus designated every Deputy
    _____

    Assistant in the Criminal Division, the appellant said, it

    failed to "specially designate" any particular individual.

    We recently affirmed the validity of a structurally-

    identical authorization memorandum. In United States v.
    _____________

    Citro, 938 F.2d 1431 (1st Cir. 1991), the authorization
    _____

    memorandum, like the memoranda at issue here, carried a

    signature line for the Assistant Attorney General in charge

    of the Criminal Division, but actually was signed by one of

    his Deputy Assistants, who had been identified by title but

    not by name in the then-current Attorney General's

    designation order. Id. at 1435.
    ___

    In Citro, we rejected the appellant's contention that
    _____

    designation by title rather than name was insufficient:

    Section 2516(1) does not state that the Attorney
    General must designate officials by name.
    Identification by position is entirely consistent
    with the legislative history, which indicates that


    -10-















    the purpose of the statute was to ensure that
    intrusive electronic eavesdropping be authorized
    only by a limited group of responsible federal
    officials. The statute requires that each of the
    officials be able to trace his or her explicit
    authority, by designation, to the Attorney General,
    an official who, by virtue of presidential
    appointment and Senate confirmation, is publicly
    responsible and subject to the political process.
    The statutory limitations allow the responsible
    persons to be identified and encourage consistency
    in the policy with which the electronic
    surveillance power is used. The Attorney General's
    designation of individuals by title is sufficient
    to ensure the goals of accountability,
    identification and consistency. We see no reason
    to construe the statute to impose a technical
    requirement that the individuals be designated by
    name provided their identities are clearly
    ascertainable at any given time.

    Id. at 1435-36 (citations omitted). See also United States
    ___ ________ _____________

    v. Torres, 908 F.2d 1417, 1422 (9th Cir. 1990); United States
    ______ _____________

    v. Pellicci, 504 F.2d 1106, 1107 (1st Cir. 1974) (per
    ________

    curiam).

    In Citro we did not say in so many words that an
    _____

    authorization memorandum is valid when it contains an empty

    signature line for the Assistant Attorney General but goes

    out over the signature of a Deputy Assistant. Such a ruling,

    however, was implicit in our general endorsement of the

    authorization memorandum. In the case at hand, at any rate,

    we find no fault in the arrangement of signatures on the

    authorization memoranda. The district judge who issued the

    intercept order and its extensions could not have been

    "misled" in any material sense by the presence of Assistant

    Attorney General Mueller's printed name under the signature


    -11-















    line. The signatures on the memoranda correctly reflected

    the identities of the persons who actually gave the

    authorizations (i.e., Deputy Assistants Bucknam, Richard and

    Keeney) -- each of whom had the statutory power to do so by

    virtue of the Attorney General's "special designation." Cf.
    ___

    United States v. Chavez, 416 U.S. 562 (1974) (failure to
    ______________ ______

    correctly identify person authorizing application does not

    render electronic surveillance illegal where person who

    actually authorized application had power to do so).

    The judgment of contempt is affirmed.
    ________

































    -12-