Grand Jury, Matter of
| Decision Date | 30 October 1975 |
| Docket Number | No. 75-1631,75-1631 |
| Citation | 524 F.2d 209 |
| Parties | In the Matter of the GRAND JURY: In re Veronica VIGIL, Witness-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ruth Buechler, Denver, Colo. (Paul S. Salas, Fort Collins, Colo., on the brief), for witness-appellant.
J. Terry Wiggins, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for the United States.
Before BREITENSTEIN, McWILLIAMS and DOYLE, Circuit Judges.
The witness-appellant, Veronica Vigil, seeks review and reversal of an order of the United States District Court for the District of Colorado finding her in civil contempt pursuant to 28 U.S.C. § 1826(a), based on her refusal to testify before the grand jury. Numerous reasons are advanced in support of her demand for reversal and remand. She contends:
1. That there was unlawful electronic surveillance which justified her refusal to answer questions.
2. That she had sufficient cause to refuse to testify because her husband was the object of the inquiry and she was compelled to testify against him.
3. That she was deprived of due process of law, first, because of inadequate notice of the hearing; second, by denying her reasonable time to obtain witnesses and otherwise prepare herself; and, third, by permitting some of the proceedings to take place in private.
4. That the grand jury proceedings were illegal because the purpose of the investigation was not legitimate.
5. The grand jury was not drawn from a fair cross section of the community.
6. The appellant was denied the right to have counsel present in the grand jury room.
7. The order compelling the appellant to testify pursuant to 18 U.S.C. § 6002 in terms of the so-called use immunity statute failed to protect her from testimonial self-incrimination.
When appellant was called before the grand jury on August 19, 1975, she refused to answer questions propounded to her. The court on the same date, after a hearing and on the basis of an application pursuant to 18 U.S.C. §§ 6002 and 6003, ordered her to answer the questions. On August 22, 1975, appellant again appeared before the grand jury and she again refused to answer the questions which she had been ordered to answer. Her continued refusal to answer led to the adjudication that she was in civil contempt of the court and to her confinement.
The witness was first served with a subpoena on July 22, 1975, directing her to appear before the grand jury on August 19, 1975. According to the government's brief, present counsel for appellant were in the case as early as August 14, 1975, and on August 18 filed various motions, memoranda and affidavits on behalf of appellant.
On August 19, hearings were held on the appellant's numerous motions, including grand jury selection, the right to have an attorney present in the grand jury room, and her right to compel disclosure of electronic surveillance. On the latter motion extensive hearings were had dealing with whether there had been or had not been such surveillance. Testimony of the agents involved in the investigation denied any electronic surveillance. The government through the United States Attorney also denied any electronic surveillance in the case. The court ruled that there was no probability or even a fair possibility that there had been any interception of communications.
On the occasion of appellant's being called before the grand jury, she refused to answer any questions except to give her name. Some 14 written questions were submitted to her; she was allowed to leave the grand jury room to confer with her counsel as to each question. She refused to answer all of the 14. After this she appeared before the district court and the application and order for use immunity were made and granted followed by a further opportunity to answer questions. The immunity had no effect on her giving answers; she now made it plain to the court that she would continue her refusal, relying on the privileges which she had asserted. It was only after full opportunity to testify had been given that she was adjudged in contempt of court. 1
On August 22, 1975, a final opportunity to answer the questions was extended. This took place at a hearing in the presence of the grand jury. The transcript reflecting the questions asked and the answers given was read by the reporter. In response to this final effort, she responded that although she did not mean any disrespect, she intended to "rely on privileges that have been raised before this court." Thereupon, the trial court noted that it had previously ruled that The cause came to us on appeal soon after the trial court's adjudication. By order of September 9, 1975, we denied appellant's request for a stay pending appeal, but accelerated the appellate hearing. Oral arguments were had on September 18, 1975. The requirement contained in 28 U.S.C. § 1861, that any appeal from an order of confinement under § 1826, supra, is to be disposed of not later than 30 days from the filing of the appeal, demanded the giving of a decision on September 19, 1975. On that day we affirmed the judgment by minute order. This present opinion supplements the September 19, 1975 order.
the claims of privilege were not legal claims and that the one against self-incrimination "was adequately provided for by the court's order of immunity." It proceeded to enter its judgment finding the witness "to be in civil contempt of this court and I commit you to the custody of the Attorney General of the United States or his duly authorized representative until such time as you will comply with the order of this court and answer the questions of the grand jury or until the further order of this court."
The issue of alleged illegal telephone surveillance arises pursuant to28 U.S.C. § 1826(a), 2 which section authorizes a court to confine a witness to jail who has refused to answer without "just cause." If there has been prior illegal and relevant electronic surveillance, just cause not to answer exists. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). The Supreme Court there recognized illegal electronic surveillance as a defense to a contempt proceeding under the above statute. Illegal interception of telephone conversations had occurred, and hence the issue whether "just cause" for the refusal of the witnesses to answer was presented. Pointing out that § 1826(a), supra, limits the adjudication of contempt to the case of a grand jury witness who has refused without just cause shown to comply with an order of the court to testify, the Court held where there is a showing that the interrogation would be based upon the illegal interception of the witness' communications, there is just cause which precludes adjudication of contempt. The Court reasoned that the prohibitions in Title III of the Omnibus Crime Control Act and, particularly, 18 U.S.C. § 2515, bar the use of contents and fruits of illegal interceptions, and that it followed that all of the matters other than those authorized to be used (that is, all matters barred by 18 U.S.C. § 2515) were entitled to be protected.
Our questions whether electronic surveillance actually existed and the sufficiency of the witness' claim as to electronic surveillance did not have to be considered by the Court in Gelbard. Nor did it have to rule on the issue of sufficiency of the government's denial under 18 U.S.C. § 3504(a)(1). 3
We consider then, first, the adequacy of the proof in support of appellant's charges that the government has engaged in electronic surveillance and, second, the sufficiency of the government's denial. We have concluded that the appellant's evidence to establish the existence of electronic surveillance is grossly lacking and, at the same time, that the government's denial was sufficient to dispel any suspicions raised by appellant's papers and thus it satisfied the demands of § 1826(a), supra.
THE INSUFFICIENCY OF THE EVIDENCE TO ESTABLISH THE EXISTENCE
The evidence relied on is contained in affidavits of counsel for appellant and the witness, with most of the information coming from appellant's counsel.
Counsel's affidavit said:
That in the spring of 1974, two men approached appellant seeking permission to repair the telephone in her residence. In fact, she had no telephone;
At various times during the spring of 1974, automobiles of the Alcohol, Tobacco and Firearms Department were seen in the parking lot near the residence of appellant;
In August 1975, after two attempts were made to call a witness from Alamosa (Colorado), an operator came on the line and asked the affiant to dial again. After a third unsuccessful effort, the call had to be placed through an operator;
In recent calls from the affiant's residence and business telephones, there has been substantial delay between dialing and the ringing sound. During a recent conversation with the attorney, a loud hum was heard during the conversation;
An appointment was made, over the attorney's telephone, with a scientific expert. Despite the fact that only the attorneys involved and the expert knew of the appointment, an unknown person called and cancelled the appointment.
The affidavit of appellant set forth her belief that the questions asked her before the grand jury were based either directly or indirectly on illegal electronic surveillance; this belief, according to the affidavit, was based on an analysis of the questions asked on the occasion of her August 19 appearance. No specific evidences were offered.
A further affidavit of counsel filed August 22 described additional difficulties with her telephone difficulties in dialing local numbers in Denver, hearing a double beep, having a male voice come on the line and ask what number she was calling and being informed that the number was a working number and to dial again. In several instances the telephone...
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