Harkins, In re

• Decision Date: 21 July 1980
• Docket Number: No. 80-1614,80-1614
• Citation: 624 F.2d 1160
• Parties: In re Grand Jury Investigation John HARKINS. Appeal of John HARKINS.
• Court: U.S. Court of Appeals — Third Circuit

Page 1160

624 F.2d 1160

In re Grand Jury Investigation John HARKINS Appeal of John HARKINS.

No. 80-1614.

United States Court of Appeals Third Circuit.

Argued May 19, 1980.

Decided May 30, 1980.

As Amended June 17, 1980.

Rehearing Denied July 21, 1980.

Gary B. Zimmerman (argued), Irving M. Green (argued), New Kensington, Pa., for appellant.

Robert J. Cindrich, U. S. Atty., Paul J. Brysh (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before ADAMS, VAN DUSEN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

In Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), the Supreme Court held that a grand jury witness had "just cause" to refuse to answer a question if the question was based on information obtained from an electronic wiretap already determined to be illegal. In this case we must examine an issue expressly left open in Gelbard whether a grand jury witness, who has refused to answer a question based on a facially valid court ordered wiretap, has a right to challenge the legality of the wiretap by examining government documents supporting the court order and by presenting evidence purportedly to show the insufficiency of these documents. 408 U.S. at 61 n. 22, 92 S.Ct. at 2368. Because we conclude that the district court impermissibly barred access by the witness to these documents and failed to provide any hearing to present other defenses to his refusal to testify, we will vacate its order holding the witness in contempt.

I.

John Harkins appeared before a federal grand jury in the Western District of Pennsylvania on March 26, 1980. Invoking his fifth amendment right against compulsory self-incrimination, he refused to answer any questions other than his name and address. The United States Attorney immediately went before a District Judge of the Western District of Pennsylvania seeking use immunity for Harkins' testimony pursuant to 18 U.S.C. §§ 6002 and 6003 (1976). Although the court granted immunity to Harkins, he expressed to the court his continued intention not to answer any questions. The court instructed the parties to set a date for a contempt hearing, but the United States Attorney requested that the date not be set until after Harkins returned to the jury and specifically refused to answer questions after the grant of immunity. The court acceded to the request, explicitly noting that the contempt hearing would be arranged and held after that point. ¹ Harkins refused to testify and a date for a contempt hearing was subsequently set for April 7, 1980.

On April 7, rather than holding a contempt hearing, the district court only considered a motion by the United States Attorney to quash subpoenas recently served by Harkins on three assistant United States Attorneys and two F.B.I. agents. In these subpoenas Harkins had sought assorted information about the grand jury investigation and, in particular, the use of electronic surveillance as the basis for questions to be asked of Harkins. ² Harkins was informed by the government at the hearing that at least some of the questions were based on electronic surveillance, but the district court quashed the subpoenas on the ground that the witness had no right to any further information.

The hearing that day was not a contempt hearing, as the court specifically noted, but rather a hearing to consider the motion to quash. ³ When Harkins' counsel informed the court that Harkins would no longer make a general refusal to testify, the court allowed Harkins to return to the grand jury to answer questions. He warned Harkins, however, that if he "persists in his refusal to testify, I will then consider contempt." App., at 16. (emphasis added). He subsequently informed the parties:

If (Harkins) does not testify, they are going to bring him back here and there will be a contempt hearing this afternoon, if the Grand Jury is sitting today. We will have the hearing this afternoon. (Harkins) will be entitled to make a defense if (Harkins) wish(es).

App., at 18. (emphasis added) Later that afternoon the government advised the court that the grand jury which originally interrogated Harkins was not sitting that day. Thus, the government decided to delay Harkins' testimony until the 28th when that grand jury would be sitting.

On the 28th, however, before appearing before the grand jury, Harkins made a motion to quash the government's subpoena on the ground that the questions he would be asked were based on illegal wiretaps of his communications. The district judge held a hearing that morning in which the government claimed that the questions were based on a legal wiretap authorized by court order. The court examined in camera the court order, and the Attorney General's application and the accompanying affidavit, ⁴ and found them facially valid. It denied Harkins' further request for a full fledged hearing on the legality of the wiretap, which evidently would have required access by Harkins to these documents and to the surveillance logs, ⁵ and ordered Harkins to testify.

Harkins appeared before the grand jury, and responded to some questions, but refused to answer five of the questions posed. When he was returned to the court, the district judge denied his request for a contempt hearing and immediately held him in contempt for refusing to answer a grand jury question without "just cause" in violation of 28 U.S.C. § 1826(a) (1976). ⁶

Harkins has appealed the finding of contempt to this court on two grounds. ⁷ First, he argues that the district court did not provide him with an adequate hearing to establish that the questions he refused to answer were based on an illegal wiretap of his communications. He claims that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (the Act), requires that he be given access to the government documents supporting a facially valid court ordered wiretap in order to assess its legality. The Act, he further suggests, gives him the right to a plenary hearing in order to introduce witnesses and evidence challenging the sufficiency of these documents. Neither was provided by the district court in this case. Second, Harkins argues that the district court failed to give him any hearing at all on any of the other as yet unspecified grounds for his refusal to testify. We will first consider his procedural rights under the Act and then discuss whether the district court provided him with a hearing to present his other claims.

II.

Under the Act Congress established a comprehensive program for regulating wiretapping and electronic surveillance. Electronic surveillance is prohibited except in specially regulated circumstances where law enforcement officials have received prior judicial approval based on stringent guidelines. 18 U.S.C. §§ 2516, 2518(1)-(8). In order to enforce this prohibition the statute imposes criminal and civil penalties for unlawful interception as well as for disclosure of unlawful interception. 18 U.S.C. §§ 2511(1) and 2520. The Act also establishes its own exclusionary rule prohibiting the introduction of evidence obtained from illegal electronic surveillance in judicial or administrative proceedings, including the grand jury. 18 U.S.C. §§ 2515 and 2518(9)-(10). The force of this exclusionary rule in grand jury proceedings, the major question in this case, requires an interpretation of two sections.

Section 2515 states:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

On its face Section 2515 would appear to prohibit the use of evidence obtained from illegal wiretaps in grand jury contempt proceedings and to impliedly assure adequate procedures for an aggrieved witness to assess and challenge the legality of evidence upon which questions are based. Section 2518(10)(a), however, which specifies the type of hearings in which an "aggrieved person" can move to suppress admission of such evidence, does not include grand juries among the list of proceedings. ⁸ It states in full:

(10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom on the grounds that

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

The legislative history on the interaction of these two provisions adds to this apparent contradiction by indicating that the procedures available for challenging use of such evidence in grand jury proceedings should be limited because of special...