Quinn, In re

• Decision Date: 07 November 1975
• Docket Number: No. 75-1359,75-1359
• Parties: In re John Herbert QUINN, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 222

525 F.2d 222

In re John Herbert QUINN, Appellant.

No. 75-1359.

United States Court of Appeals, First Circuit.

Submitted Oct. 9, 1975.

Decided Nov. 7, 1975.

Vincent de Paul Dunn and Maynard, Dunn & Phillips, Concord, N. H., on brief for appellant.

William J. Deachman, U. S. Atty., and David H. Hopkins, Special Asst. U. S. Atty., Concord, N. H., on brief for appellee.

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

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from the district court's order holding Quinn in contempt for his refusal to answer questions before a grand jury. Quinn initially refused on the ground of self-incrimination to answer any questions that called for him to do more than identify himself. He was thereupon brought before the court and, on motion of the United States, granted immunity under 18 U.S.C. Sec. 6001 et seq. Upon his continued recalcitrance, the court found him in contempt and ordered him committed. Execution of the court's order has since been stayed to give us time to examine the sufficiency of the reasons Quinn gives for remaining silent.

Danger of Foreign Prosecution

Quinn argues that the conferred immunity cannot protect him from prosecution by Great Britain and, thus, does not render his coerced testimony non-incriminatory. He points to Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), holding that the fifth amendment protects against federal as well as state incrimination, to show that the threat of foreign prosecution likewise permits invocation of the privilege.

Whether and under what circumstances the valid threat of a foreign criminal prosecution might enable a witness to claim the privilege against self-incrimination has not been decided by the Supreme Court. In Zicarelli v. New Jersey Investigation Comm'n, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972), the Court concluded that, as the witness had not shown a real and substantial danger of foreign prosecution, the issue was not before it.

The investigation here involved Quinn's alleged purchase in New Hampshire of firearms which were later found in Ireland. However, the questions put to Quinn focus upon activities within New Hampshire or, at least, the United States. ¹ Quinn does not assert that his answers might disclose that he engaged in compromising conduct while present on British soil and subject to British criminal jurisdiction. Furthermore, with perhaps very narrow exceptions, see United States v. Honneus, 508 F.2d 566, 571 & n. 3 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975), a nation's criminal laws do not operate extra-territorially. Quinn has not identified any British criminal statute under which he reasonably fears prosecution for conduct to which the questions might relate. See In re Cardassi, 351 F.Supp. 1080, 1084 (D.Conn. 1972). On such a record, failing as it does to particularize any real or substantial danger of foreign prosecution, Quinn's claim must fail and no question is presented whether, in an appropriate case, a witness could refuse to testify on that ground.

Electronic Surveillance

Quinn's other justification for refusing to answer questions was that they were formulated as the result of unlawful electronic surveillance. Quinn raised this claim in an affidavit filed on September 19, 1975. ² He stated therein that an examination of the questions indicated "clearly and without any doubt that the source for the questions had been obtained through illegal electronic surveillance." He went on to say that he had "suffered greatly by the illegal activities of the Treasury Department, particularly through its agents, a Mr. Philip Tortorella, a Mr. David Carlson and a Mr. Tinker whose first name is unknown to me, when they came to my place of business on or about November 5, 1974, with cameras and other electronic equipment ...." Quinn finally stated that the questions propounded "concerning a telephone conservation with one Frank Sullivan with respect to legal fees, could only have been obtained through an illegal overhear between my attorney and myself."

The Government in turn filed five affidavits pursuant to 18 U.S.C. Sec. 3504. Three responded to Quinn's specific allegation that three agents had come to his place of business with electronic equipment. Philip J. Tortorella, Jr., and David Carlson, both named in Quinn's affidavit, recalled having been in the vicinity of Quinn's store in early November, 1974, but denied conducting any surveillance or using any electronic equipment. John D. Spooner stated that he had gone to Quinn's place of business to take his picture on November 4, 1974, but denied utilizing or having in his possession any electronic equipment. ³

The other two government affidavits responded to Quinn's more general contentions that the source of the questions was electronic surveillance. William J. Deachman, United States Attorney for the District of New Hampshire, stated that he was familiar with both the investigation into the purchase of a substantial number of firearms by Quinn and the proposed lines of inquiry by the grand jury. He further stated that to his knowledge the basis of all questions was legal investigative effort and he denied "the occurrence of any unlawful act on behalf of the United States on which said inquiry is based and does further deny their formulation on the basis of any court sanctioned or illegal electronic surveillance."

The second affidavit was that of Kendrick L. Sawyer, Special Agent of the Bureau of Alcohol, Tobacco and Firearms, who stated that he was in charge of the investigation, that he had personally conducted a substantial portion of it, and that he was aware of the investigation conducted by the other Special Agents. He further stated that "[i]n the course of my investigation into this matter, no electronic surveillance has been conducted by the Bureau of Alcohol, Tobacco and Firearms, and I am not aware of any electronic surveillance having been or now being conducted by any other law enforcement agency."

The parties appeared before the district court on September 22 at a show cause hearing on the question of contempt. Quinn's counsel requested an evidentiary hearing on the question of electronic surveillance so that he might cross-examine the Government's affiants. The court asked him several times what evidence he had of electronic surveillance, other than the content of the questions, before it would rule on that request. Counsel responded that Quinn's telephone had been constantly out of repair during the period mentioned in the questions, that there has been extensive interference, and "it was his [Quinn's] opinion that he was being tapped at that particular time." Counsel also reported that the telephone company had recently refused to release any information to Quinn, concerning any repairs made at that time. No other evidence was offered as a basis for his suspicion.

The court then called Quinn himself to the stand and, while questioning him as to his intent to testify before the grand jury, called upon Mr. Deachman, one of the Government's affiants. The court asked Mr. Deachman if he had been in charge of the investigation in New Hampshire, to which he said yes; and whether, to his knowledge, anyone from any body of the Government had used any kind of electronic surveillance or bugging or listening devices in investigating Quinn. Deachman answered that, to his knowledge, there had been none, and the court stated...