Grand Jury Subpoena Served on Doe, In re, 417

• Citation: 889 F.2d 384
• Decision Date: 08 November 1989
• Docket Number: D,No. 417,417
• Parties: In re GRAND JURY SUBPOENA SERVED ON John DOE. John DOE, a Grand Jury Witness, Appellant, v. UNITED STATES of America, Appellee. ocket 89-6171.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 384

889 F.2d 384

103 A.L.R.Fed. 411

In re GRAND JURY SUBPOENA SERVED ON John DOE John DOE, a Grand Jury Witness, Appellant, v. UNITED STATES of America, Appellee.

No. 417, Docket 89-6171.

United States Court of Appeals Second Circuit.

Argued Sept. 13, 1989.

Decided Sept. 18, 1989.

Opinion Nov. 8, 1989.

John Nicholas Iannuzzi, New York City (Iannuzzi and Iannuzzi, New York City, Joan A. Alpert, of counsel), for appellant.

James H. Rodio, Atty., Tax Div., Dept. of Justice, Washington, D.C. (Shirley D. Peterson, Asst. Atty. Gen., Robert E. Lindsay, Alan Hechtkopf, Kimberly M. Zimmer, Attys., Dept. of Justice, Washington, D.C., Andrew J. Maloney, U.S. Atty. E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before LUMBARD, CARDAMONE and FRIEDMAN, ^* Circuit Judges.

LUMBARD, Circuit Judge:

John Doe appeals from an order of the United States District Court for the Eastern District of New York, Wexler, J., denying his motion to quash a subpoena compelling him to testify before the grand jury. After refusing to testify, appellant was held in civil contempt and ordered incarcerated until he appeared to testify. He remains under house arrest, and seeks a reversal of the contempt finding and a quashing of the subpoena.

Having heard argument on September 13, 1989, we acted in compliance with the requirements of 28 U.S.C. Sec. 1826(b) and on September 18 filed an order affirming the District Court. This opinion follows.

I.

On August 2, 1985, Suffolk County Judge Kenneth K. Rohl, acting at the request of the New York State Attorney General, and on the supporting affidavit of an investigator with the New York State Department of Taxation and Finance, issued an order authorizing state and federal law enforcement officials to conduct electronic surveillance of the offices of Sheldon Levine at 445 Broadhollow Road in Melville, New York. Levine and others, known and unknown, were suspected of committing grand larceny, falsification of business records, and conspiracy to commit these crimes in violation of New York Penal Law.

The investigation preceding the request for surveillance was conducted by the Long Island Gas and Oil Industry Task Force ("Task Force"), comprised of representatives from local, state, and federal law enforcement agencies, including the New York State Attorney General, local police departments and district attorneys, the Federal Bureau of Investigation, and the Internal Revenue Service. Created in 1982, the Task Force was charged with investigating the influence of organized crime on the distribution of fuel oil and gasoline on Long Island.

Judge Rohl's authorization, granted under New York's eavesdropping statute, N.Y.Crim.Proc.Law Art. 700 (McKinney 1984 and 1989 Supp.), allowed both the federal and state law enforcement officers on the Task Force to conduct the surveillance, but use of the intercepted communications was expressly limited to evidence of the three state crimes.

In November 1985, the New York Attorney General and the Assistant Attorney-in-Charge of the Organized Crime Strike

Force for the Eastern District of New York, both of whom were members of the Long Island Task Force, submitted affidavits to Judge Rohl stating that the surveillance conducted thus far had revealed evidence of federal crimes, including federal tax offenses, and requesting that the August 2 order be amended to permit the use of that evidence before a federal grand jury then investigating, among other crimes, violations of federal tax laws. On November 8, acting pursuant to a section of the federal eavesdropping statute, 18 U.S.C. Sec. 2517(5), Judge Rohl granted their request and amended the August 2 order to allow all intercepted oral communications relating to federal crimes to be used in any federal grand jury proceeding or in any court of the United States. The federal crimes specifically listed in the amended order were 18 U.S.C. Secs. 1962 and 1963 (relating to racketeer influenced and corrupt organizations); 18 U.S.C. Secs. 1503, 1510 and 1512 (relating to obstruction of the due administration of justice, a criminal investigation and tampering with a witness); 18 U.S.C. Sec. 1341 (relating to mail fraud); 18 U.S.C. Sec. 1343 (relating to wire fraud); 18 U.S.C. Secs. 2314 and 2315 (relating to interstate transportation, receipt and sale of stolen property); 18 U.S.C. Secs. 1621, 1622 and 1623 (relating to perjury); 18 U.S.C. Sec. 371 (relating to conspiracy); 26 U.S.C. Secs. 7201, 7202, 7203 and 7206(1) and (2) (relating to violations of the tax laws); and Title 31 of the United States Code (relating to violations under the Currency and Foreign Transactions Reporting Act).

After the communications intercepted by the surveillance revealed appellant's name, a subpoena was issued on July 25, 1988 under the authority of the United States District Court for the Eastern District of New York directing him to appear and testify on September 14, 1988 before the federal grand jury. The appellant having failed to appear on the scheduled date, Judge Wexler in November 1988 ordered him to testify or show cause why he should not be compelled to do so. ¹ At several hearings in June and July 1989 before Judge Wexler, appellant claimed that his suffering from a number of cardiovascular and respiratory ailments precluded him from testifying. On July 20, 1989, Judge Wexler found that the appellant was physically able and directed him to testify.

Meanwhile, on May 16, 1989, appellant moved to quash the subpoena, arguing, inter alia, that Judge Rohl's amended surveillance order impermissibly encompassed federal tax offenses not listed in 18 U.S.C. Sec. 2516, the statute that specifies federal crimes for which surveillance is authorized. On August 4, Judge Wexler denied the motion to quash and twelve days later he denied reconsideration.

On August 16, appellant appeared before the grand jury and refused to testify, claiming a fourth amendment privilege based on the illegality of the surveillance order. After a hearing that same day, Judge Wexler determined that appellant understood the ramifications of his refusal to testify, cited him for civil contempt, and ordered him incarcerated.

II.

Appellant objects to Judge Wexler's order on three grounds: first, that he was entitled to an in camera review of the validity of the surveillance order before he could be held in contempt; second, that the authorization is facially invalid under 18 U.S.C. Sec. 2517; and third, that Judge Rohl lacked authority to permit surveillance relating to federal crimes. We reject all three contentions.

A. In Camera Review

Appellant argues that grand jury witnesses are entitled, as a matter of law, to at least an in camera review of the validity of an eavesdropping order before they may be compelled to testify. We believe that Judge Wexler fully considered appellant's objections on August 4 and 12 and that an additional in camera review was not necessary. Judge Wexler was provided with the text of Judge Rohl's authorizations and the supporting affidavits, and he accorded appellant the opportunity to file papers in support of his motion to quash. Moreover, Judge Wexler considered Judge Nickerson's opinion in United States v. Levine, 690 F.Supp. 1165 (E.D.N.Y.1988), which had upheld the validity of the amended surveillance order, as it pertained to Levine, under 18 U.S.C. Sec. 2517(5). Acknowledging that he was not bound by Levine, Judge Wexler noted that Judge Nickerson's reasoning was "both compelling and correct." Judge Wexler added: "Thus, even if [appellant] had standing to challenge the wiretap, this Court would deny his motion for the reasons discussed in Judge Nickerson's opinion." There was no need for an in camera review.

B. Federal Crimes as "Other" Offenses Under 18 U.S.C. Sec.

2517(5)

Appellant next argues that Judge Rohl's amendment of the initial order to allow surveillance for evidence of federal tax offenses was invalid under 18 U.S.C. Sec. 2517(5). That section states:

When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom

may be disclosed under oath at official proceedings if "authorized or approved by a judge of competent jurisdiction."

Appellant contends that the phrase "in the manner authorized herein" requires that amended orders address only such offenses as are specified in Section 2516. That section contains an extensive list of offenses for which surveillance is authorized but, as appellant notes, it does not specify federal tax offenses--the offenses on which he was to be questioned by the grand jury. ²

This issue--whether an amended order can authorize use of communications revealing evidence of crimes that could not have been investigated under an original order--is one of first impression in this Circuit. We hold that "other" offenses under Section 2517(5) may include offenses, federal as well as state, not listed in Section 2516 so long as there is no indication of bad faith or subterfuge by the federal officials seeking the amended surveillance order. The Government here concedes that the federal tax offenses at issue could not properly be investigated in the first instance by a Section 2516 order. We believe, however, that Congress intended that amended orders under Section 2517(5) could encompass federal crimes not listed in Section 2516. The Senate Report accompanying Section 2517(5) states that "other" offenses under that section "need not be designated 'offenses,' " an apparent exemption from the requirement that the offense be among those designated in the Section 2516 list. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin. News 2112, 2189 (hereinafter "Legislative...