In re Grand Jury Proceedings, Harrisburg, Pennsylvania, 71-1088.

• Citation: 450 F.2d 199
• Decision Date: 28 May 1971
• Docket Number: No. 71-1088.,71-1088.
• Parties: In re GRAND JURY PROCEEDINGS, HARRISBURG, PENNSYLVANIA. In the Matter of Joques EGAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

450 F.2d 199 (1971)

In re GRAND JURY PROCEEDINGS, HARRISBURG, PENNSYLVANIA In the Matter of Joques EGAN, Appellant.

No. 71-1088.

United States Court of Appeals, Third Circuit.

Argued January 29, 1971 and Submitted on Briefs February 5, 1971.

Reargued April 5, 1971.

Decided May 28, 1971.

As Amended June 16, 1971.

Dissenting Opinion November 11, 1971.

Certiorari Granted December 14, 1971.

William T. Coleman, Jr., Dilworth, Paxson, Kalish, Levy & Coleman, Jack Levine, Philadelphia, Pa., for appellant.

Robert Keuch, Special Litigation Section, Internal Security Division, U.S. Dept. of Justice, Washington, D.C., for appellee.

Before FORMAN, ALDISERT and GIBBONS, Circuit Judges.

Before HASTIE, Chief Judge, and FORMAN,^* SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS and ROSENN, Circuit Judges.

Reargued En Banc April 5, 1971.

Certiorari Granted December 14, 1971. See 92 S.Ct. 531.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The primary issue raised by this appeal is whether a citizen who is summoned before a grand jury may object to questions based on information obtained through allegedly illegal and indeed unconstitutional wiretapping directed against the witness. Because of the great importance of what is at stake here — not only the interpretation of provisions of the Omnibus Crime Control and Safe Streets Act dealing with unauthorized electronic surveillance, but also the Fourth Amendment — we are constrained to set forth our views in some detail.

We begin with the reminder that the basic purpose of the Fourth Amendment, recognized by countless decisions of the Supreme Court, is to safeguard the privacy and security of citizens against arbitrary invasions by governmental officials. It thus gives concrete expression to a right of the people basic to a free society.¹

Sister Joques Egan, a member of the Order of Sacred Heart, was called before a federal grand jury in the early afternoon of January 14th in connection with an investigation into an alleged plot to kidnap a high public official and other offenses. An indictment naming six defendants had been handed down several days before, and it had named Sister Egan as an alleged co-conspirator, but not as a co-defendant.² Immediately following her refusal to testify on Fifth Amendment grounds, her counsel was served by the Government with an application for immunity pursuant to 18 U.S.C.A. § 6003 of the Organized Crime Control Act of 1970.

The District Court held an immediate hearing on this first immunity application. During the course of the hearing, counsel for appellant argued that the constitutionality of § 6003 was subject to serious doubt, repeatedly asked the Court for sufficient time to prepare and file a brief, and also sought an opportunity to make a motion to suppress. The Government asserted that the validity of § 6003 was assured, and that any delay in granting the application would impede the progress of the grand jury. At the close of argument, the Court allowed counsel until the following day, January 15th, to file additional legal memoranda. The next morning, counsel argued that because the Act of 1970 provided solely for "use," as distinguished from "transactional," immunity, it was unconstitutional. The Court adjourned until January 25th. On January 25th, the Court granted the application for immunity under § 6003, and Sister Egan was directed to be available for examination the next morning, January 26th.

Contrary to the Court's instruction, and in direct reversal of the Government's announced intention, appellant was not called before the grand jury on January 26th. Instead, the Government served counsel with an application for a grant of "transactional immunity" under 18 U.S.C.A. § 2514, the Omnibus Crime Control and Safe Streets Act of 1968, stating that the Court would hear this new application "immediately."³

Appellant's counsel, having had the new application for only fifteen minutes, asked for adequate time to prepare to argue the applicability and the constitutionality of § 2514 of the 1968 Act. Indeed the undated authorization letter from the Assistant Attorney General was not shown to Sister Egan's counsel until all parties were in the courtroom for the hearing. The Court refused to give defense counsel the opportunity to argue the applicability of § 2514, and instead immediately signed the order granting immunity and requiring Sister Egan to appear before the grand jury forthwith. Sister Egan's counsel, together with the Government attorney, went to the Court's chambers and made additional objections both to the applicability of § 2514 and the lack of adequate notice and time to prepare argument.⁴ The Court overruled all the objections made by Sister Egan's counsel, but did acknowledge the shortness of time permitted counsel to prepare for the hearing.

Before the grand jury once again, Sister Egan refused to testify on several grounds,⁵ one of which is her primary contention on appeal—that the information which caused the Government to subpoena her and which prompted the questions propounded to her flowed from illegal wiretapping and electronic surveillance.

On January 26, 1971—minutes after her refusal to testify—appellant was brought back before the Court and, after being instructed to answer the questions and refusing to answer them, was held in contempt. Appellant stated to the Court she was not being disrespectful, but that in addition to the legal grounds already set forth her conscience compelled her not to answer. The Court ordered that she be held in prison until she testified or until the end of the life of the grand jury.

Thereafter, on Sister Egan's application, this Court granted bail until it could decide the appeal on the merits. Without hearing further oral argument, the Court proceded on March 2, 1971 to affirm the judgment of contempt. Sister Egan then filed a petition for rehearing, and the Court en banc heard argument on April 5, 1971.⁶

The Government did not suggest during reargument before the Court en banc, or at any time in this proceeding, that it did not employ wiretaps nor that any electronic surveillance that may have been utilized was authorized by court order. Since Sister Egan has not yet been afforded a hearing regarding her allegations of illegal electronic surveillance by the Government, for the purpose of this appeal we assume her allegations to be true.

Three primary issues are raised by this case: first, whether the procedure provided by 18 U.S.C.A. § 2518(10) (a) for the suppression of evidence derived from illegally intercepted communications is available to Sister Egan under the present circumstances; second, whether a district court may order Sister Egan to testify before a grand jury, if such testimony would violate an express congressional prohibition; third, whether Sister Egan has a constitutional right to refuse to answer questions propounded to her before a grand jury when the basis for the questions is electronic surveillance of her conducted by the Governmment in violation of the Fourth Amendment.

I

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is applicable to the first issue raised by Sister Egan. Section 2515 of the Act, 18 U.S.C.A. § 2515, provides:

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter." (emphasis supplied).

Section 2515 is an unequivocal bar to questioning one before a grand jury if the questions are derived from electronic surveillance conducted in the absence of a properly issued warrant and aimed at the witness, if the witness himself objects to the interrogation. See 18 U.S.C.A. § 2511, § 2516, § 2518. The prohibition of § 2515 is in accord with Congressional findings set forth in § 801 of the Act of 1968, which explain that the purpose of Title III of the Act is, inter alia, "to protect effectively the privacy of wire and oral communications" and "the integrity of court and administrative proceedings."⁷

In his dissent, Judge Gibbons interprets this view as meaning that if illegal wiretaps are used against A, then A himself is precluded from voluntarily revealing the contents of the overheard communication. We do not so read § 2511(1) (c). Instead, we suggest that it unqualifiedly bars the party making the illegal tap; not the party who has been victimized—the "aggrieved party."

The Government contends, however, that although Congress in § 2515 specifically prohibited the disclosure to a grand jury of evidence derived from illegal wiretaps, nevertheless Congress excluded grand jury witneses from availing themselves of the remedy provided by § 2518 (10) (a). Section 2518(10) (a) states:

"Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, 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; or

(iii) the interception was not made in conformity with the order of authorization or approval."

The initial requirement for the invocation of § 2518(10) (a) procedure is that the moving party be an "aggrieved person."

Section 2510(11) defines "aggrieved person" for the purpose of the Act of 1968 to mean "a person who was a party to any intercepted wire or oral communication or a person against whom the...