DeMonte, In re
| Decision Date | 10 December 1981 |
| Docket Number | No. 81-2804,81-2804 |
| Citation | 667 F.2d 590 |
| Parties | In re Francis J. DeMONTE, A Witness Before the Special September 1981 Grand Jury. Francis J. DeMONTE, Witness-Appellant, v. UNITED STATES of America, Petitioner-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jerome Rotenberg, Louis Carbonaro, Chicago, Ill., for witness-appellant.
Dan K. Webb, U. S. Atty., Chicago, Ill., for petitioner-appellee.
Before SPRECHER, BAUER and CUDAHY, Circuit Judges.
This is an appeal from an order of the district court that adjudged the appellant, a recalcitrant grand jury witness, in civil contempt and directed that he be confined pursuant to 28 U.S.C. § 1826. For the reasons stated below, we vacate that order and remand the matter for further proceedings.
The appellant, Francis J. DeMonte, was originally subpoenaed to appear before the Special September 1978 Grand Jury on July 1, 1981. He responded to that subpoena but refused to answer questions, asserting his Fifth Amendment privilege against self-incrimination. He also objected to the questions on the ground that they were the product of illegal electronic surveillance. At that time, the government attorney in charge of the investigation sought approval from the Department of Justice to apply for a court order granting the appellant immunity.
Subsequently, DeMonte was subpoenaed to appear before the Special September 1981 Grand Jury on October 14, 1981. 1 Again, he asserted his Fifth Amendment privilege. Following that refusal to testify, the government presented to the district court a petition for an order granting the appellant immunity pursuant to 18 U.S.C. §§ 6002, 6003. At the hearing on the immunity petition, the appellant restated his claim that he had been the subject of illegal electronic surveillance and asked for limited access to government documents which purportedly authorized such surveillance. The court disallowed that argument as premature and signed the immunity order.
The appellant was returned to the grand jury, but for the third time he refused to testify. Despite the grant of immunity, he continued to assert what he claimed was his Fifth Amendment privilege. He also repeated his claim that his subpoena was "based on illegal wire tapping." The government responded by filing a petition for contempt.
At the contempt hearing, the appellant initially contended that he should not be compelled to testify because of his confusion regarding the scope of his immunity. The court rejected that argument. At that point, the government responded to the appellant's prior wiretap allegations by presenting an affidavit, sworn to by the attorney in charge of the investigation, which admitted that the appellant had been the subject of electronic surveillance, but which stated that all electronic interceptions of appellant's communications had been authorized by court order. 2 The government filed a set of sealed documents to support its claim that the surveillance had been lawful. 3 The government's affidavit also denied that any occurrences of electronic surveillance, other than those detailed in the documents, had taken place. 4 The appellant moved for permission to examine the supporting materials. The court denied that request and, instead, made an in camera review of the documents. The court found the intercepts in accordance with the authorizing court orders and rejected the wiretap objection as a basis for the appellant's refusal to testify.
The appellant then objected to the sufficiency of the government affidavit. At that time, he took the stand and gave further testimony detailing his grounds for suspecting that he was the subject of illegal electronic surveillance. The court, again relying on the in camera documents, reaffirmed its ruling on the wiretap objection.
Following the hearing, the district court entered a contempt order, dated October 14, 1981, committing the appellant to the custody of the United States Marshal until he obeyed the court's order or the September 1981 grand jury expired.
On October 28, 1981, the appellant filed a petition to stay the order of commitment and to set bail pending appeal. On October 29, 1981, the court granted that motion. The appellant filed his notice of appeal from the October 14 order on November 10, 1981.
In this appeal, the appellant presents four questions for review: (1) whether the three month delay in the government's application for an order granting the appellant immunity denied him due process of law; (2) whether the appellant was justified in refusing to answer questions before the grand jury because of his alleged confusion as to the scope of his immunity; (3) whether the affidavit filed by the government in response to the appellant's assertion that the questions asked to him before the grand jury were the product of illegal electronic surveillance was sufficient; and (4) whether the district court erred in denying the appellant limited access to documents presented by the government to support its claim that the electronic surveillance of the appellant was lawful.
The appellant's due process claim is based on the premise that the "obvious reason that immunity was not given DeMonte during the life of the Special September 1978 Grand Jury was the fact that if he did not testify after a grant of immunity at that time, he would have been subject to incarceration for only a very short period of time whereas if immunity were delayed until such time as a new Grand Jury were impaneled, his refusal to answer questions could result in a much greater period of imprisonment." 5 (Appellant's Brief at 8.)
The appellant attempts to analogize that delay in the government's application for a grant of immunity to instances of prosecutorial vindictiveness. E.g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Casting the delay in those terms, he argues that the government's bad faith undermined the power of the second grand jury and justified his refusal to testify. We reject this argument.
This court, in the context of allegations of selective or vindictive prosecutions, has held that to establish a prima facie case of prosecutorial bad faith a defendant must "allege( ) intentional purposeful discrimination and present( ) facts sufficient to raise a reasonable doubt about the prosecutor's purpose ..." United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc); United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). Absent such a showing, the presumption of good faith "remains undisturbed." United States v. Niemiec, 611 F.2d 1207, 1209 (7th Cir. 1980).
The only showing that the appellant has made in this case is: (1) that there was a three month delay between his first grand jury appearance and the government's application for a grant of immunity, and (2) that because of his refusal to testify before the second grand jury he can be confined for up to eighteen months, whereas had he been committed in contempt during the first grand jury he would have been confined for less than two months. 6 His assertion that the "obvious reason" for the delay was prosecutorial bad faith is simply conclusory. In fact, at the appellant's bail hearing, the government offered an alternative explanation for the delay. It stated that the internal administrative process necessary to gain the approval of the United States Assistant Attorney General to make the request for immunity had consumed the three month period. The district court, weighing the arguments of both parties found no reason to support a finding of government misconduct. On the basis of the record in this case, we are also unable to conclude that the appellant has met his burden of proving bad faith or vindictiveness. United States v. Kember, 648 F.2d 1354, 1372 (D.C.Cir.1980).
The appellant also attempts to justify his refusal to testify on the ground that he was confused as to the scope of the immunity granted to him. He cites as the source of his confusion a discrepancy in the description of the substantive scope of the grand jury inquiry contained in the advice of rights notice which he received with his subpoena. 7 He urges that he was unclear whether his immunity extended to some or all of the statutory provisions listed in that description.
This argument seriously misconstrues the immunity statute and must also fail.
The appellant was granted immunity under 18 U.S.C. §§ 6002, 6003. Section 6002 explains the scope of such immunity, stating in pertinent part:
no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
(Emphasis added.) The immunity granted to the appellant was in no way limited by the scope of the grand jury's inquiry. Rather, it prohibited the prosecutorial use of his compelled testimony "in any respect." Kastigar v. United States, 406 U.S. 441, 454, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972). The district court explained this implication of the immunity to the appellant. Because his immunity was coextensive with the scope of his privilege against self-incrimination, it was sufficient to compel testimony over a claim of that privilege. Id.
The appellant's third argument questions the sufficiency of the affidavit submitted by the government, pursuant to 18 U.S.C. § 3504, in response to the appellant's allegation of illegal electronic surveillance. Upon such a claim by a grand jury witness, the government is required to "affirm or deny the occurrence of the allegedly unlawful act." 8 As noted earlier, the affidavit in this case, sworn to by the government attorney in charge of the investigation,...
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