Beverly v. United States

• Citation: 468 F.2d 732
• Decision Date: 25 September 1972
• Docket Number: No. 72-2752.,72-2752.
• Parties: In re Grand Jury Proceedings of Robert W. BEVERLY et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

468 F.2d 732 (1972)

In re Grand Jury Proceedings of Robert W. BEVERLY et al., Appellants, v. UNITED STATES of America, Appellee.

No. 72-2752.

United States Court of Appeals, Fifth Circuit.

September 25, 1972.

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Cameron Cunningham, Austin, Tex., Benjamin E. Smith, New Orleans, La., Jack Levine, Philadelphia, Pa., Nancy Stearns, Doris Peterson, James Reif, c/o Center for Constitutional Rights, New York City, Judith Petersen, Johnson & Ellis, Gainesville, Fla., Edward Carl Broege, Newark, N. J., for appellants.

William M. Piatt, Robert L. Keuch, Thaddeus B. Hodgdon, Attys., U. S. Dept. of Justice, Washington, D. C., Stewart J. Carrouth, Guy Goodwin and Stark King, U. S. Dept. of Justice, Tallahassee, Fla., William H. Stafford Jr., U. S. Atty., Pensacola, Fla., A. William Olson, Asst. Atty. Gen., Washington, D.C., for appellee.

Before GODBOLD,^* SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

We review the commitment under Section 1826, Title 28, U.S.C.¹ of the four appellants for civil contempt for refusal to answer questions before a federal grand jury. The commitment of each was for confinement for the life of the grand jury (about 12 months) or until he testified in response to the questions propounded. We find that one of the several contentions advanced by appellants is meritorious and accordingly vacate the contempt order.

The appellants, and others, members of the Vietnam Veterans Against the War (VVAW), were subpoenaed on July 7, 1972, to appear and testify on Monday, July 10, before a grand jury of the Northern District of Florida in Tallahassee, Florida. The grand jury was investigating alleged plans of the VVAW to disrupt the Republican National Convention in Miami, Florida, to be held the week of August 21, in violation of various criminal statutes. The appellants appeared before the grand jury the week of July 10, but refused to answer any questions.²

On July 13, the United States sought to compel the appellants' testimony before the grand jury by seeking a grant of use immunity under Title 18, U.S.C., Sections 6002, 6003,³ from the court below. In response, the appellants alleged by motions, supported by affidavits asserting information and belief, that they had been subjected to illegal electronic surveillance, and moved under Title 18, U.S.C., Section 3504,⁴ for affirmance or denial of this allegation by the government.

After a hearing, the district court granted use immunity to the appellants. The appellants each subsequently appeared before the grand jury, but again refused to testify,⁵ whereupon the United States sought to have the appellants held in civil contempt by the presiding district judge. At this juncture, on July 13, the government filed similar affidavits as to each witness denying any electronic surveillance of each of them.⁶ The court, after a show cause hearing, and after eliciting a continuing refusal to answer from each witness, but without making findings of fact and conclusions of law, held the appellants in civil contempt pursuant to Title 28, U.S.C., Section 1826,⁷ and ordered them incarcerated for the life of the grand jury⁸ or until such time as they should by answering the questions purge themselves of contempt. The same day, July 13, the grand jury returned an indictment⁹ against six other members of the VVAW, since dubbed by the news media as "The Gainesville Six".

A panel of this Court on July 18 vacated the lower court's adjudication of civil contempt, and remanded for further hearing below and entry of findings of fact and conclusions of law.¹⁰ At the ordered hearing held on July 25, the appellants again asserted illegal electronic surveillance by the government. On August 3 the appellants filed motions, supported by affidavit, asserting that one of their counsel might have been subjected to illegal electronic surveillance.

This affidavit was that of James Reif which the district court undertook to analyze by its separate August 7 order (Footnote 11, infra), and which we discuss in some detail, infra. At that time there was also on file among the earlier affidavits, but not again specifically called to the court's attention by the motion regarding electronic surveillance of counsel, an affidavit of another counsel for one or more of the appellants, Nancy Stearns. The Stearns affidavit although setting forth reasons—inability to get a dial tone, hearing clicks, noises and voices on the telephone, et cetera—to believe that there might be electronic surveillance of the "VVAW house" (actually the residence of one Hall, a VVAW member) or of the residence where Stearns and other attorneys were staying in Tallahassee, did not intimate suspected surveillance of her conversations as being appellant's counsel's communications. In other words, the Stearns affidavit on its face simply supported the claim that one or more of the grand jury witnesses were being subjected to electronic surveillance. Without detailing the contents of the July 13 affidavits of the four appellants and others, it suffices for the present to note that they all recounted happenings giving rise to a belief that their telephone messages were being electronically intercepted. Also presented was the affidavit of Michael McCain, a national co-ordinator for the VVAW, who described personal, civilian and military experience qualifying him as an expert in electronics and communications systems, and interpreted by means of this knowledge and expertise the noises and other disturbances heard by the other affiants as indicating use of electronic bugging equipment attached to some or all of the listed telephones.

The affiant James Reif was also of counsel in the consolidated cases of In re Tierney and Reilly, et al. v. United States, 5 Cir. 1972, 465 F.2d 806. His affidavit was based on a statement of the government's brief on appeal in Tierney that "subsequent to the disclaimers made by the government in response to the order of the district court, information was received that one of the attorneys now before this Court had been, on one occasion, overheard on a surveillance being conducted pursuant to court order". This statement was discussed in Tierney at page 812-813 of the opinion. The Reif affidavit proceeded on the postulate that of the four counsel of record in Tierney and Reilly, two of them (the affiant Reif and Ms. Peterson) were among the four counsel for these appellants and that there was thus a 50% chance that the attorney who was overheard in Tierney and Reilly was also counsel for these appellants. The affidavit urged that it might also turn out that one or more other attorneys in the case at bar were overheard by governmental electronic surveillance. It was this line of reasoning which the trial court denominated as "imprecise speculation", requiring no response.

The Reif affidavit included additional pertinent observations which we set forth below:

"7. Electronic surveillance of an attorney raises the most basic constitutional questions. We need cite only one. If the government admits surveillance of any attorney in this case but refuses to disclose the records of that surveillance in order to enable respondents to determine whether or not their Sixth Amendment rights have been violated, there will then be squarely posed to this Court the very constitutional question which lead (sic) Supreme Court Justice William O. Douglas, on July 29, 1972, to stay commencement of one of the most important trials of our time, the `Pentagon Papers\' case, United States v. Byrne, 409 U.S. 1219, 93 S.Ct. 21, 33 L.Ed.2d 30 (C.D.Cal.). (A copy of Mr. Justice Douglas\' opinion, as dictated over the telephone, is annexed hereto.)

"8. In light of the facts which have recently been made known by the government, the appropriate procedure is to call upon the government to affirm or unequivocally deny surveillance of each of the attorneys who have appeared in these proceedings, and to then have a hearing on the issues arising from the government\'s response.

"9. It should be noted that, apart from this motion and as the government concedes in its Tierney-Reilly brief at p. 25, the government is under an affirmative obligation to provide an individual with all records of any overhearing which may violate that person\'s Sixth Amendment right to effective counsel, whether or not that surveillance also violates the Fourth Amendment and 18 U.S.C. § 2510-20."

The government did not respond by denial or affirmance to the claim of attorney surveillance, the court holding that the motion did not make sufficient showing to warrant requirement of a response.¹¹

On August 7 the district court again held the appellants in civil contempt and entered similar findings of fact and conclusions of law respecting each appellant.¹² The appellants moved the trial court on August 9 for a stay or bail pending appeal. That court denied the motion, holding that the appeal was frivolous and brought for the purpose of delay in terms of Title 28, U.S.C., Section 1826(b). See Footnote 1, supra. The appellants were incarcerated the same day, with this appeal being entered August 11.

The appellants moved this Court on August 15 for stay or bail pending appeal. After an emergency hearing of this application in New Orleans on Friday, August 18, we denied the application.¹³ Because of the severe 30-day time restriction for decision on appeal of Section 1826, Title 28, U.S.C., we directed an accelerated briefing schedule on the merits of the appeal.

On September 11, because of a breakdown in briefing schedule, due in part at least to the failure of counsel to receive opponents' original briefs until after the long Labor Day weekend (September 1 to September 5), and taking note of appellants' unopposed motion for extension of Section 1826's thirty day time limit if necessary to insure thorough consideration and an informed decision, we provided for reply briefs through ...