442 F.2d 276 (7th Cir. 1971), 71-1155, In re Dionisio

Docket Nº:71-1155, 71-1157.
Citation:442 F.2d 276
Party Name:In re Antonio DIONISIO and Charles Bishop Smith, Witnesses before the Special February 1971 Grand Jury. v. UNITED STATES of America, Appellee. Antonio DIONISIO and Charles Bishop Smith, Appellants,
Case Date:March 25, 1971
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 276

442 F.2d 276 (7th Cir. 1971)

In re Antonio DIONISIO and Charles Bishop Smith, Witnesses before the Special February 1971 Grand Jury.

Antonio DIONISIO and Charles Bishop Smith, Appellants,


UNITED STATES of America, Appellee.

Nos. 71-1155, 71-1157.

United States Court of Appeals, Seventh Circuit.

March 25, 1971

         Rehearing Denied June 14, 1971.

Page 277

[Copyrighted Material Omitted]

Page 278

         Frank G. Whalen, Gerald M. Werksman, Chicago, Ill., for appellants.

         William J. Bauer, U.S. Atty., Lee Allen Hawke, Asst. U.S. Atty., Sheldon Davidson, Herbert Beigel, Sp. Attys., Sidney M. Glazer, Atty., U.S. Dept. of Justice, for appellee.

         Before SWYGERT, Chief Judge, and FAIRCHILD and KERNER, Circuit Judges.

         PER CURIAM.

         This is an appeal by Antonio Dionisio and Charles Bishop Smith from separate orders finding them in contempt of court and committing them to custody for failing to furnish voice exemplars to the Special February 1971 Grand Jury for the Northern District of Illinois.

         On February 17 and 19, 1971, Dionisio and Smith, having been called before the grand jury and advised that they were potential defendants in its investigations, refused the jury's request that they furnish voice exemplars which would be compared with voices contained on Federal Bureau of Investigation tape recordings of telephone messages intercepted pursuant to a court-ordered wiretap.

         On February 19 (Dionisio) and February 23 (Smith), the district court ordered that the two witnesses:

         furnish before and to the SPECIAL FEBRUARY 1971 GRAND JURY of the United States District Court for the Northern District of Illinois, or to any duly appointed agent of said Special Grand Jury, such exemplars of respondent's voice as the said Special Grand Jury deems necessary.

         The manner in which it was proposed to take these voice exemplars is as follows. The witness would be taken to an office of the United States Attorney and would be requested by FBI agents to read from a transcript of the conversations which the FBI had recorded earlier pursuant to the court-ordered wiretap and with which the witness' voice was to be compared. While reading from this transcript, the witness would speak into a telephone and his voice would be recorded on a machine operated by other FBI agents in some other room in the building. The witnesses would be permitted to have their counsel present at the United States Attorney's office where the scripts were to be read.

         Both Dionisio and Smith refused to furnish the requested voice exemplars; and on February 22 (Dionisio) and February 23 (Smith), they were committed for contempt for their refusal to comply with the district court's order. Dionisio and Smith filed notices of appeal on February 23.

          The district court, having determined that the appeals were frivolous and taken for delay, refused the witnesses' motions to set bail or to stay the commitment order pending appeal. See 28 U.S.C. § 1826(b). On the witnesses' emergency motions, this court found the constitutional questions raised too substantial to justify characterizing the appeals as frivolous and ordered the witnesses admitted to bail.

          Appellants contend that the procedure attempted by the grand jury violated their...

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