Korman v. United States

• Citation: 486 F.2d 926
• Decision Date: 08 June 1973
• Docket Number: 72-1930.,No. 72-1778,72-1778
• Parties: In the Matter of Jack KORMAN and Robert W. Likas, Witnesses before the Special February 1971 Grand Jury, Appellants, v. UNITED STATES of America, Appellee. UNITED STATES ex rel. Jack KORMAN and Robert W. Likas, Petitioners-Appellants, v. The UNITED STATES ATTORNEY FOR the NORTHERN DISTRICT OF ILLINOIS and the United States Marshal for the Northern District of Illinois, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

486 F.2d 926 (1973)

In the Matter of Jack KORMAN and Robert W. Likas, Witnesses before the Special February 1971 Grand Jury, Appellants, v. UNITED STATES of America, Appellee.

UNITED STATES ex rel. Jack KORMAN and Robert W. Likas, Petitioners-Appellants, v. The UNITED STATES ATTORNEY FOR the NORTHERN DISTRICT OF ILLINOIS and the United States Marshal for the Northern District of Illinois, Respondents-Appellees.

Nos. 72-1778, 72-1930.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1973.

Decided June 8, 1973.

Anna R. Lavin, Chicago, Ill., for appellants.

James R. Thompson, U. S. Atty., William T. Huyck, James Murray, Asst. U. S. Attys., Chicago, Ill., for appellees.

Before Mr. Justice CLARK^*, DUFFY, Senior Circuit Judge and KILEY, Circuit Judge.

DUFFY, Senior Circuit Judge.

There are two appeals before us for our consideration. These have been consolidated in this Court in order to expedite the appeal in each.

On April 20, 1971, appellants Korman and Likas were found to be in civil contempt of the Court by a District Judge under 28 U.S.C. § 1826(a) for refusing "without just cause shown to comply with an order of the court to testify" before the Special February 1971 Grand Jury convened in Chicago, Illinois. Initially, the appellants herein refused to testify asserting their Fifth Amendment privilege against self-incrimination. Each defendant was granted immunity pursuant to 18 U.S.C. § 6002. They remained silent contending that the use immunity conferred by the statute was inadequate to supplant their Fifth Amendment privileges.

An appeal was taken to this Court and we reversed the District Court, holding that only full transactional immunity is sufficient to supplant the privilege against self-incrimination. In Re Korman, 449 F.2d 32 (7 Cir., 1971). Thereafter, the Supreme Court granted certiorari and summarily reversed our Court's holding relying on Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).¹

On July 17, 1972 the District Court extended the term of the Special February 1971 Grand Jury for a period of six months pursuant to the provisions of 18 U.S.C. § 3331 (a).²

On August 15, 1972 while still free on bail during the pendency of the District Court's consideration of their contempt citations, motions were filed on behalf of the appellants declaring the necessity of a hearing in the District Court to determine whether they had been the subjects of illegal governmental electronic surveillance. In the "Motion for Production of Reports of Electronic Surveillance" and the "Motion to Stay Mittimus," the appellants (petitioners therein) alleged that because the Solicitor General had refused to answer their inquiries with respect to the utilization of electronic surveillance in gathering information for the Special February 1971 Grand Jury, they therefore had reason to believe that they had, in fact, been so subjected.³

On the same date the motions were filed and a hearing on the same held, the United States Department of Justice filed in District Court a letter dated August 7, 1972 from Henry E. Petersen, Assistant Attorney General, to Sheldon Davidson of the Chicago Strike Force denying that conversations of the appellants had been overheard by the Department of Justice by means of electronic surveillance. The letter disclosed that the Internal Revenue Service had utilized a pen register on the telephone of appellant Likas from February 8 to May 22, 1963, but no conversations were monitored at that time or any subsequent time. The letter mentioned conversations between one Phillip Stollman and an individual calling himself Jack Korman overheard on an extension phone by an Internal Revenue Service agent in Stollman's office and with Stollman's consent on October 18 and 20, 1961. With respect to both appellants, the letter indicated no further electronic surveillance or monitorings of their conversations had been conducted by the Internal Revenue Service.

The letter concluded with a statement that the appellants had never been subjected to electronic surveillance by the United States Secret Service, the United States Postal Service, the Bureau of Alcohol, Tobacco and Firearms or the Bureau of Narcotics and Dangerous Drugs.⁴

The District Court, 351 F.Supp. 325, denied the motions of the appellants in a Memorandum Order and Opinion dated August 17, 1972 and directed that they be taken into custody for the contempt citations. The Court, in its decision, reasoned that a pen register was not within the scope of the Omnibus Crime Control and Safe Streets Act of 1968; that the letter of August 7, 1972 was firm and unequivocal in its denial of "interception" as construed under 18 U. S.C. § 2515; and, that it was bound by the decisions of this Court in Fraser v. United States, 452 F.2d 616 (7 Cir., 1971) and In Re Womack, 466 F.2d 555 (7 Cir., 1972) when considering the efficacy of the denials of the Department of Justice and the evidentiary value to be given such representations.

On August 25, 1972 two subsequent motions were filed by the appellants, one a "Motion to Reconsider Ruling of August 17, 1972", and the other, "Amendment to Stay Mittimus". The District Court denied the former motion and allowed appellants to file an amendment to the Motion to Stay Mittimus nunc pro tunc August 15, 1972 for purposes of appeal.

In said amendment, appellants asserted that,

"7. The response of the government is insufficient in law and fact in that:

a. The attachment pre-dates the claim under Title 18 U.S.C. §§ 2515 and 3504.

b. It does not constitute an affirmance nor denial contemplated by the Statutes above.

c. It does not constitute an "official denial." See concurring opinion, White, J., in Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357 33 L. Ed.2d 179.

d. It does not cover the use of pen registers or similar devices.

"8. That assuming, arguendo, pen registers and similar devices are not within the ban of Title 18 U.S.C. §§ 2515 and 3505:

a. The use of the pen register is a violation of the Telecommunications Act b. This Court is bound by United States v. Dote, 371 F.2d 176.

c. The use of such evidence is expressly prohibited by the Fourth Amendment, and particularly by the decision of the Supreme Court in Silverthorne v. United States, 251 U.S. 385 40 S.Ct. 182, 64 L.Ed. 319. (See discussion of Mr. Justice Douglas in Gelbard, 92 S.Ct. at 2368-2372.)"

Meanwhile the appellants had been incarcerated on August 22, 1972 as a consequence of their contempt citations and remain in jail pending the outcome of these appeals.⁵

On October 11, 1972 a Petition for Writ of Habeas Corpus was filed on behalf of the appellants herein raising a multiplicity of issues concerning the constitutionality and existence of the Special February 1971 Grand Jury. The petition for the Writ of Habeas Corpus was dismissed by Judge Robson on November 7, 1972 in Memorandum and Order bearing the same date.

Subsequently, after a hearing on January 6, 1973, the Special February 1971 Grand Jury was again extended on January 10, 1973 upon the request of the members of the Special Grand Jury for another six months pursuant to 18 U.S.C. § 3331(a).⁶

In appeal No. 72-1778, the appellants question the concomitant denials of the Motion for Production of Reports of Electronic Surveillance and the Motion and Amendment to the Motion to Stay Mittimus.

Appeal No. 72-1930 concerns the propriety of the dismissal of the Habeas Corpus action.

No. 72-1778

In response initially to appellants' Motion for Production of Reports of Electronic Surveillance, the government refused to reply. Prior to the hearing on August 15, 1972, the government supplied counsel for appellants with the aforementioned letter of denial dated August 7, 1972 denying any overhearings of appellants' conversations by means of electronic surveillance as defined in 18 U.S.C. § 2510 et seq. On appeal, appellants contend that assuming arguendo an official denial by the government precludes further refusals to testify by persons similarly situated with appellants, the inter-agency letter of denial in this case did not qualify as an official denial.

Our Court in In Re Womack, 466 F.2d 555 (7 Cir., 1972), stated at page 558 in an identical fact situation where potential grand jury witnesses alleged that electronic surveillance either led to the issuance of their subpoenas or constituted the source of information which motivated their production as witnesses,

"We can only conclude that neither Congress in the Omnibus Crime Control and Safe Streets Act or in the Organized Crime Control Act nor the Supreme Court in Gelbard intended to overrule or change the constitutional rule of Alderman Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 that only the person whose privacy is invaded by an illegal electronic surveillance has standing to object.

"Hence the representations in this case by the Department of Justice that the privacy of neither relator was subject to interference put `the matter . . . at an end and the witness(es) must answer\'."

Thus, the initial question which must be resolved is whether the letter of denial by the Department of Justice was sufficient to put the appellants' allegations of electronic surveillance to an end, foreclosing the necessity of additional affirmative action by the government or requiring a hearing on the matter. See also Fraser v. United States, 452 F.2d 616, 621 (7 Cir., 1971).

As indicated in the previous opinions, our Circuit has deemed such letters of denial sufficient as a disclaimer of governmental intervention by electronic means. Yet, subsequent to these decisions, certain indiscretions have been revealed concerning illegal electronic surveillance which seem to militate for a more formal and binding denial than those which were found to be adequate in Womack, supra, and Fraser, supra. We therefore are of the opinion that an official governmental denial of electronic...