United States v. Doe, No. 73-1062
| Decision Date | 04 April 1973 |
| Docket Number | No. 73-1062,73-1063. |
| Citation | 478 F.2d 194 |
| Parties | UNITED STATES of America v. John DOE (two cases). Appeal of Marilyn ALPEREN. Appeal of Robert ALPEREN. |
| Court | U.S. Court of Appeals — First Circuit |
Barry H. Gerstein and Gerstein & Weiner, Boston, Mass., on brief, for appellants.
Edward F. Harrington, New Bedford, Mass., Attorney-in-Charge, and George F. Kelly, Sp. Atty., U. S. Dept. of Justice, on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
During the spring of 1971 a court-authorized tap was placed on the telephone line going to a house occupied by Robert and Marilyn Alperen, husband and wife, pursuant to 18 U.S.C. § 2510 et seq. Conversations of the wife indicating that gambling activities were being conducted from the house were overheard. In due course the husband and wife were summoned to appear before a federal grand jury. Upon their being asked essentially duplicative questions, both claimed self-incrimination and invoked the Fifth Amendment. Immunity was thereupon offered to them under 18 U.S.C. § 2514. When the questions were re-put, both again refused to testify, invoking, inter alia, the husband-wife privilege against testifying against the other, the only issue now raised. Upon their insistence in this court, they were adjudicated in contempt, and from that order they appeal. Pending our resolution of the appeals, they have been admitted to bail.
Although the seeming drift of the questions makes this case perhaps a clearer one for the invocation of the privilege than might be some others, cf. United States v. George, 6 Cir., 1971, 444 F.2d 310, it must be apparent that if appellants' position is to be sustained, it would seem seriously to frustrate both the federal, and the state, Mass.G.L. c. 233 § 20C et seq., procedures whereby testimony thought worth the cost may be obtained by offering the witness immunity from criminal prosecution.
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