Maury Santiago, In re

• Decision Date: 16 April 1976
• Docket Number: No. 76-1079,76-1079
• Citation: 533 F.2d 727
• Parties: In re Edgar MAURY SANTIAGO, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 727

533 F.2d 727

In re Edgar MAURY SANTIAGO, Appellant.

No. 76-1079.

United States Court of Appeals First Circuit.

Argued Feb. 11, 1976.

Decided April 16, 1976.

Paul Schater, with whom Juan R. Acevedo, Hato Rey, P.R., was on brief, for appellant.

Julio Morales Sanchez, U. S. Atty., San Juan, P.R., with whom Jorge Rios Torres, Asst. U. S. Atty., San Juan, P.R., was on brief, for appellee.

Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This is an appeal from the district court's order holding Edgar Maury Santiago in civil contempt pursuant to 28 U.S.C. § 1826(a), for his refusal to answer questions before a grand jury. The grand jury investigation concerned the theft of 3,650 pounds of explosive material known as Iremite from a warehouse in Puerto Rico in July, 1974. When first brought before the grand jury, Maury refused to answer any questions except as to his identity, citing, among others, the ground of self-incrimination. He was thereupon brought before the district court and, on motion of the government, granted use immunity under the provisions of 18 U.S.C. § 6001 et seq. Upon his return to the grand jury, Maury continued his refusals to answer. The government instituted civil contempt proceedings against him. At the show cause hearing, the district court determined that Maury's claims of "just cause", see 28 U.S.C. § 1826(a), ¹ were insufficient to free him from his duty to testify, and found him in contempt. The district court ordered him committed, but granted bail pending appeal. ² Our task, on appeal, is to review the court's determination that Maury has no "just cause" for refusing to testify.

Maury claims that the government's procedure in granting him immunity was defective, and therefore he can continue to assert his Fifth Amendment privilege. He contends that there was no showing that the United States Attorney complied with the statutory preconditions for immunity under18 U.S.C. § 6003(b). ³ The record, however, establishes that an adequate showing was made. The U. S. Attorney filed a letter from a proper official of the Justice Department authorizing him to request immunity for Maury. He stated in open court that Maury's testimony was, in his opinion, necessary to the public interest. The judgment of the U. S. Attorney is unreviewable in this matter, In re Lochiatto, 497 F.2d 803, 804 n. 2 (1st Cir. 1974); In re Kilgo, 484 F.2d 1215, 1219 (4th Cir. 1973), and we see no reason to require that this representation be put in affidavit form. The final requirement was satisfied when the court reporter read Maury's statement in support of his refusal to testify into the record. We see no merit in appellant's challenge to the grant of immunity.

Maury also claimed a statutory privilege not to testify based on allegations of electronic surveillance pursuant to Gelbard v. United States,408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). This court has recently reviewed the obligation of the government in response to a claim of privilege under 18 U.S.C. § 3504 by a grand jury witness. In re Quinn, 525 F.2d 222 (1st Cir. 1975); see also In re Hodges, 524 F.2d 568 (1st Cir. 1975). This case involves the application of the principles of Quinn to a different factual situation.

Under Quinn, the first step in evaluating a denial of electronic surveillance is the identification of the governmental agencies which contributed information to the investigation, and which participated in the preparation for the grand jury proceedings. In the present case, F.B.I. Agent Smolinski, who is currently in charge of the investigation into the theft of the Iremite, testified that all the questions to be propounded to the witness were based on information generated by the F.B.I. alone. Although Agent Smolinski was relying on his review of the investigation file and on conversations with the former case agent who actually conducted the investigation, and the supervisor of the local F.B.I. office, the district court clearly credited his testimony. While there is some doubt in our minds that this representation is completely accurate, the agent's testimony was uncontradicted as to this point and not inherently incredible. ⁴ Therefore, we hold that the testimony was legally sufficient, albeit barely so, to identify the local F.B.I. office as the only agency to be canvassed in a search for illegal electronic surveillance.

The question then becomes whether the U. S. Attorney and the case agent were in a position, through inquiry, "reasonably to ascertain whether or not relevant illegal activities took place". 525 F.2d at 225. The U. S. Attorney, Morales Sanchez, testified that he had asked three F.B.I. agents, Mr. Dwyer, the F.B.I. Supervisor, Mr. Ganon, the case agent for most of the investigation, and Mr. Smolinski, the current case agent, whether they had conducted any electronic surveillance in relation to the investigation of the theft of the Iremite or in relation to Maury. He testified that their answers were in the negative.

Mr. Smolinski, as noted above, also testified. He stated that he made inquiries of Messrs. Dwyer and Ganon, and received the answer that no electronic surveillance had been performed. He testified further that a thorough review of the case file revealed no notation of electronic surveillance.

We affirm the district court's judgment that the government's denial was sufficient to satisfy the requirements of In re Quinn, supra. ⁵ We note, however, that the choice of the U. S. Attorney to present the denial in the form of live testimony probably made our task in evaluating the evidence more difficult than if the relevant information had been contained in affidavits. The required showings were made piecemeal during the testimony, and some through responses on cross-examination. Further, the testimony of the government witnesses was, in places, contradictory. While a hearing, with the opportunity for cross-examination by the witness and questioning by the judge, is a profitable procedure for thoroughly exploring the facts, a careful U. S. Attorney should consider the advantages inherent in carefully documenting all the relevant facts in affidavits even when a hearing is held.

Maury's remaining defenses to the order to testify were properly denied by the district court. The policies articulated in Calandra v. United States, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), concerning the smooth functioning of the grand jury severely limit the issues that may be raised in a § 1826 contempt proceeding. A recalcitrant witness, for example, lacks standing to challenge the composition of the grand jury. United States v. Duncan, 456 F.2d 1401, 1403 (9th Cir. 1972); see 28 U.S.C. § 1867. Similarly, the witness cannot challenge the authority of the grand jury on the theory that its investigation does not concern matters within the subject matter jurisdiction of the federal courts. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979, 983 (1919). Therefore, the appellant's contentions on these grounds lack merit.

The courts, however, retain general supervisory power over the grand jury to prevent abuse of its process or the invasion of the constitutionally protected rights of the witnesses called before it. See In re Lopreato, 511 F.2d 1150 (1st Cir. 1975); In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973). Maury claims that the U. S. Attorney was improperly using the grand jury to prepare a pending indictment for trial and to harass him because of his political beliefs. Calling a grand jury investigation for the "sole or dominating" reason of gathering information to be used in the trial of a pending indictment is an abuse, In re Doe (Ellsberg), 455 F.2d 1270, 1273-74 (1st Cir. 1972); United States v. Dardi, 330...