Special February 1975 Grand Jury, Matter of, s. 77-1885 and 77-1895

• Decision Date: 22 September 1977
• Docket Number: Nos. 77-1885 and 77-1895,s. 77-1885 and 77-1895
• Parties: In the Matter of the SPECIAL FEBRUARY 1975 GRAND JURY. Appeal of Jose LOPEZ, Roberto Caldero and Pedro Archuleta.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 407

565 F.2d 407

In the Matter of the SPECIAL FEBRUARY 1975 GRAND JURY.

Appeal of Jose LOPEZ, Roberto Caldero and Pedro Archuleta.

Nos. 77-1885 and 77-1895.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 1977.

Decided Sept. 22, 1977.

Michael E. Deutsch, Dennis Cunningham, Chicago, Ill., for appellants.

Thomas P. Sullivan, U. S. Atty., Robert T. McAllister, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before FAIRCHILD, Chief Judge, and SPRECHER and TONE, Circuit Judges.

FAIRCHILD, Chief Judge.

This is an appeal from orders entered by the district court finding Appellants Jose Lopez, Roberto Caldero and Pedro Archuleta ¹ in civil contempt of court under the recalcitrant witness statute, Title 28 U.S.C. § 1826(a) ^1a. Appellants refused to take an oath before the grand jury or to submit handwriting exemplars, fingerprints, and photographs upon the grand jury's requests. Motions by the witnesses for bond pending appeal were denied by the district court as frivolous and taken for delay. 28 U.S.C. § 1826(b) ^1b. This court denied bail.

I. Background

During the last two years the Special February 1975 Grand Jury has been investigating terrorist bombings in the Northern District of Illinois. The bombings have been claimed by or identified with a group calling itself the Fuerzas Armadas Liberacion Nacional Puertorriquena (FALN).

On November 3, 1976 Chicago police and FBI agents discovered a "bomb factory" in an apartment located in the Westown section of Chicago. This discovery along with fingerprint evidence obtained at the scene and subsequent laboratory tests provided the focus for the grand jury's investigation.

Appellants ² were subpoenaed in connection with this investigation. For nine months they sought to quash the subpoenas on various legal grounds, including claims of unlawful electronic surveillance, under-representation of Latinos on the grand jury master list, infiltration of the defense camp and assertions that the FBI and the United States Attorney had usurped the grand jury's proper function. Numerous hearings were conducted by the district court into these allegations. All appellants' motions were finally denied and they were directed to appear before the grand jury.

On July 27 and August 17, 1977 appellants appeared before the grand jury and refused to take the oath or to submit handwriting exemplars, fingerprints, and photographs as requested. Immediately after their refusal, Archuleta, Lopez and Caldero appeared before the district judge and persisted in refusing to submit to identification procedures despite the court's direct order to do so. The district court committed appellants to the custody of the United States Marshal for the Northern District of Illinois until such time as they obey the court's order or for the duration of the Special Grand Jury pursuant to Title 28 U.S.C. § 1826(b). This appeal followed.

During the pendency of this appeal, on September 7, 1977, the grand jury returned a four count indictment charging Carlos Alberto Torres and Oscar Lopez, ³ with a variety of explosives violations and conspiracy with others unknown to destroy buildings in the name of FALN.

II. First Amendment Claim

Appellants allege that the district court erred in refusing to allow them to show that the "dominant purpose" of the Special Grand Jury was political suppression of the Puerto Rican Independence Movement and an attempt to locate missing witnesses. Appellants claim that the primary reason for the subpoenas was appellants' exercise of First Amendment rights and that there was no valid connection between any legitimate subject matter of criminal investigation and information the grand jury could reasonably expect to obtain. Appellants view the subpoenas as part of "a massive program of illegal intrusion and unconstitutional invasion" including usurpation of the grand jury's role and subpoena power by the FBI.

Appellants proceed on the theory that the subpoenas and subsequent questioning pose a sufficiently serious interference with personal interests so that if done solely to suppress appellants' political beliefs, a violation of First Amendment rights would result. Assuming appellants' theory is correct without deciding its merits, we do not find appellants made their case. There is evidence in the grand jury transcripts of legitimate reasons for the grand jury subpoenas.

Evidence in the record shows that the government stated in open court and in the pleadings that the purpose of the Special February 1975 Grand Jury was "to identify, locate, produce evidence against and charge the perpetrators of a string of bombings which to date have resulted in serious personal injury and extensive property damage." ⁴ The grand jury foreman filed an affidavit on behalf of the grand jury stating that the grand jury's sole concern was the "investigation of crimes involving the unlawful use of explosives" and "is . . . unconcerned with political beliefs, political activities and free speech." ⁵ Furthermore, the district judge on two occasions reviewed the impounded grand jury transcripts and photographic and documentary evidence adduced before the grand jury and found that the grand jury was appropriately seeking evidence pursuant to the subpoenas in question and the record was devoid of any indication that the grand jury was concerned with anything other than solving bombing incidents and saving lives. The district judge concluded there was not a sufficient basis justifying further hearings on this question. We have examined the grand jury transcripts and we agree.

Appellants contend that the district court erred in refusing to hold an evidentiary hearing beyond these two reviews of the grand jury record and exhibits. Appellants cite United States v. McCarthy and Bar Mar Warehousing, 514 F.2d 368 (3d Cir. 1975) in support of this proposition. At issue in McCarthy were well defined issues of fact as to the availability to the Internal Revenue Service Intelligence Division of a second inspection under 26 U.S.C. § 7605(b). The district court was said to err in that case by making a finding on the issues based on conjecture rather than evidence and without first conducting an evidentiary hearing. In the present case, the district judge had the benefit of the government's representations, the grand jury foreman's affidavit and a review of the impounded transcripts.

No issue can be taken with the proposition that grand juries must operate within the limits of the First Amendment, Branzburg v. Hayes, 408 U.S. 665 at 708, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and cannot be transformed by zealous prosecutors into symbols of oppression, United States v. Dionisio, 410 U.S. 1, 10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). But the grand jury has a dual constitutionally mandated function to determine if there is probable cause to believe a crime has been committed and to protect citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). A grand jury necessarily holds broad powers of inquiry into any conduct possibly violating federal criminal laws and can proceed without prior formal charge against a particular individual. United States v. Bukowski, 435 F.2d 1094, 1103, (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1970). A grand jury may properly investigate on the basis of tips, rumors, hearsay, speculation or any other source of information and may inquire into the whereabouts of unlocated witnesses. In re Stolar, 397 F.Supp. 520, 522-23 (S.D.N.Y., 1975). A grand jury is not under a duty to disclose reasons for the information it seeks. It need not return an indictment; it has a legitimate interest in merely investigating a crime. United States v. Reide, 494 F.2d 644, 647 (2d Cir. 1974). The powers of a grand jury are broad but not limitless. A grand jury is under continuous supervision of a judge and a strong showing must be made before a court should interfere with its orderly process. In re William H. Pflaumer and Sons, Inc., 53 F.R.D. 464 (D.C.Pa.1971).

Appellants failed to make a substantial showing that the motives of the government and the grand jury were improper. In our opinion a mere assertion is not enough to call for an evidentiary hearing and further inquiry. This court has reviewed the impounded transcripts of the Special February 1975 Grand Jury and we find a sufficient legitimate basis for the subpoenas. In addition, the subsequent indictment of Carlos Alberto Torres and Oscar Lopez, alleging that there are other unknown conspirators, issued on September 7, 1977 is evidence of a continuing investigation of bombing-related activity within the authority and the legitimate function of the grand jury. The district court did not err in denying further evidentiary hearing on this issue.

III. Failure of District Court to Require Disclosure of Informants

Appellants allege that the district court erred in not requiring the government to disclose whether informants or agents had infiltrated the "legal camp" of appellants. Appellants base their claim upon the activity of a Chicago attorney, Ward Fisher, and their theory must be that the decision to subpoena appellants or the content of questions ultimately to be asked was based on information obtained in violation of protected privacy or privilege.

At the time the so-called bomb factory was discovered in Carlos Torres' building on November 3, 1976, Fisher was representing Torres' parents in an unrelated civil matter. Fisher was present when the FBI interviewed the parents about the whereabouts of their son, Carlos. Later Fisher attended a meeting with appellants' lawyers presumably to discuss legal strategy for the witnesses who were under subpoena. Some time later, in a conversation with one of the witnesses' lawyers about a civil case, Fisher stated ". . . I have to go out of the office now and help the FBI pick up the Puerto...