U.S. v. Stevens

• Citation: 510 F.2d 1101
• Decision Date: 21 March 1975
• Docket Number: No. 75--1320,75--1320
• Parties: In re Grand Jury Proceedings. UNITED STATES of America, Plaintiff-Appellee, v. Douglas STEVENS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1101

510 F.2d 1101

In re Grand Jury Proceedings UNITED STATES of America, Plaintiff-Appellee, v. Douglas STEVENS, Defendant-Appellant.

No. 75--1320.

United States Court of Appeals Fifth Circuit.

March 21, 1975.

Rehearing and Rehearing En Banc

Denied April 28, 1975.

Richard M. Gale, Miami, Fla., Alan E. Weinstein, Miami Beach, Fla., for defendant-appellant.

Marty Steinberg, Sp. Atty., U.S. Dept. of Justice, Miami, Fla., R. H. Wallace, Jr., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GEWIN, Circuit Judge:

This appeal concerns the legitimacy of incarceration of a grand jury witness under the district court's civil contempt power, 28 U.S.C. § 1826. ¹ The witness in question, ruled in contempt and imprisoned because he refused to answer questions after a grant of 'use' immunity pursuant to 18 U.S.C. § 6002, challenges the district court's order on the grounds that the government secured information for questioning him through illegal electronic surveillance and that the grand jury lacked authority to compel his testimony. Finding these contentions unpersuasive, we affirm.

A grand jury empanelled in the Southern District of Florida first subpoenaed the appellant Stevens to appear before it in May 1974. He appeared but refused to testify, asserting the Fifth Amendment privilege against self-incrimination. The district court, acting at the government's request, thereupon immunized him under 18 U.S.C. § 6002 and ordered that he give testimony before the grand jury which had subpoenaed him, 'as well as any subsequent Grand Jury, proceeding or trial.' Stevens subsequently re-appeared before the grand jury but again declined to answer all but preliminary questions concerning his name, address and occupation. He was immediately brought before the district court, adjudged in contempt, and imprisoned under 28 U.S.C. § 1826. He remained in jail until November 21, 1974, the date on which the grand jury term expired. Stevens does not now contest the validity of this initial incarceration.

On November 5, 1974, several weeks prior to his release, and during the term of the initial grand jury, Stevens received a subpoena to testify before a second grand jury which was to convene on November 26, 1974. He responded by filing a motion to quash the subpoena on the grounds that a grand jury had power only to subpoena witnesses for testimony during the course of its own term and could not order a witness to appear before a grand jury not yet empanelled. The motion was denied.

On December 10, 1974, Stevens appeared before the second grand jury. Although reminded that he was testifying under a grant of immunity, he would state only his name and address and indicate that he was not an American citizen. He refused to answer any further questions, claiming First, Fourth and Fifth Amendment privileges, and asserting that the questions asked him were based on information obtained by an 'illegal wiretap.'

Its patience exhausted, the government again petitioned the district court to rule Stevens in contempt for refusing to testify. In his defense ² Stevens argued, among other things, that 'the questions asked him by the Government before the Grand Jury and which he refused to answer were the primary product of an unlawful act or were predicated on the results obtained by the exploitation of an unlawful act as defined in . . . 18 U.S.C., Section 3504(b).' ³ Specifically, his pleading contended that

the questions asked him before the Grand Jury, as presented in open court by the Government were based on an illegal interception of conversations of his which occurred on telephone numbers (305) 866--4870 and 861--8921 and telephone numbers (305) 754--1279 and 751--0066. In addition to being an aggrieved party based on the fact that the witness' conversations on these phones were intercepted, the witness had a proprietary interest in the premises where the latter two phone numbers were located.

Every question asked the witness stemmed from the unlawfully intercepted conversations of himself and others. ⁴

During a hearing held to consider the contempt citation, government counsel orally admitted that federal authorities had indeed tapped the telephones described by Stevens in order to gain information for a prior investigation but insisted that the district court had already determined the legality of those wiretaps in the case of United States v. Sklaroff, No. 74--267--Cr--CA (S.D.Fla., Oct. 23, 1974). Government counsel further admitted that the Sklaroff wiretap may have formed the basis for some of the questions asked Stevens before the grand jury, and offered to the court for its in camera inspection all materials on which the questions were based.

At this point Stevens indicated to the court for the first time that he had been the victim of additional illegal electronic surveillance, apart from the Sklaroff wiretap. He sought to substantiate his claim of additional illegal surveillance during the following colloquy:

DEFENSE COUNSEL: Mr. Stevens, I direct your attention to one of the questions asked to you about certain people and conversations that may have taken place at the Pagoda Restaurant, coupled with the questions which were asked to you of other people's financial interests in gambling ventures. Did you, sir, have any private communications about this with a person known as Martin Sklaroff?

STEVENS: Yes, sir.

DEFENSE COUNSEL: Where did this conversation take place?

STEVENS: In the privacy of my office.

DEFENSE COUNSEL: Which office?

STEVENS: In the Pagoda Restaurant.

DEFENSE COUNSEL: Was it on the telephone?

STEVENS: No.

DEFENSE COUNSEL: Who was present at this conversation other than you and Mr. Sklaroff?

STEVENS: Just the two of us.

The court then permitted Stevens to state for the purposes of his § 3504 claim that the questions asked him before the grand jury must have come from unlawful interception of private conversations with Sklaroff not occurring over the telephone.

Government counsel orally denied knowledge of any other electronic surveillance. Stevens asked that the government make a formal § 3504 response to his allegation of illegal surveillance and the government attorney subsequently filed the following unsworn, written denial at the court's direction:

Now Comes the Government and responds to this witness' request under 18 U.S.C. 3504. The Government responds that any questions asked of this witness that emanated from electronic interceptions emanated from electronic interceptions in the case of United States v. Sklaroff, No. 74--267--Cr-CA. No other questions were based on any other electronic surveillance.

Furthermore, under 18 U.S.C. 3504 United States denies the occurrence of any unlawful act to obtain information about questions asked of this witness in the Grand Jury.

/s/ Marty Steinberg

Special Attorney

U.S. Department of Justice

In adjudging Stevens in contempt for failing to answer questions before the grand jury, the district court concluded that the witness's § 3504 claim of unlawful electronic surveillance was adequately met by 'the Government's willingness to state for the record that no illegal electronic surveillance was conducted which would form the basis for any questions posed to this witness before the Grand Jury.'

Stevens advances three reasons for reversal of the contempt order: (1) the government's unsworn denials that it had not used illicit electronic surveillance to gather information concerning Stevens did not satisfy the requirements of 18 U.S.C. § 3504; (2) the initial grand jury lacked authority to issue a subpoena compelling his appearance before a grand jury not yet empanelled; and (3) the government was obliged to permit him to inspect the authorization and supporting affidavits for the wiretaps used to gather evidence against him.

The most perplexing issue before us concerns the adequacy of the government's denial of the use of unlawful electronic surveillance. § 3504, stating merely that the party opposing the claim of illegal surveillance must 'affirm or deny' the commission of any unlawful act, does not specify the proper mode of such affirmance or denial. Stevens suggests that a denial must be made by sworn affidavit with the affiant specifying in detail that he personally determined from inquiries with all relevant governmental agencies that no agency involved with the investigation conducted any unlawful surveillance. The government counters in essence that when the witness's claim of illegal surveillance is general and unsubstantiated, § 3504(a)(1) is satisfied by a general denial made in good faith.

Stevens purports to find support for his position in two decisions of this court considering the adequacy of the government's § 3504 denial. See In re Tierney, 465 F.2d 806 (5th Cir. 1971); Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). Both cases uphold the sufficiency of the government's denial, but Stevens argues that in so doing, they establish rather strict standards for reviewing a § 3504 response. In Tierney, we approved a denial given under oath with the government counsel making the denial subject to cross examination. The affidavit stated that the Department of Justice had checked with all government agencies which could have been connected with the investigation, including the Department of the Treasury and its subsidiaries, the Bureau of Narcotics and Dangerous Drugs, and the F.B.I. and found that no electronic surveillance had been conducted. The Beverly court concluded that § 3504 was satisfied by the government attorney's affidavit containing the 'conclusory statement' that an inquiry of 'appropriate Federal Government agencies' revealed no electronic surveillance of the complaining party. While we noted that this affidavit in Beverly was 'far from a 'model' either in terms of its scope...