In Re Grand Jury Investigation, Liberato J. Maratea, a Witness. Appeal of Liberato J. Maratea, a Witness
444 F.2d 499
3rd Cir.
1971
Check Treatment

*1 INVESTIGATION, JURY re GRAND Maratea, a Witness. Liberato J. MARATEA, Appeal J. of Liberato

a Witness.

No. 71-1159. States Third Circuit. Rudovsky, Philadelphia, Pa., David Argued 4, 1971. March Keuch, Appellate Robert L. Chief and

Reargued April Banc 1971. En Litigation Section, Civil Internal Securi Decided ty Justice, Division, Department July 9, As Amended C., Washington, appellee. D. HASTIE, Judge, Before Chief Judges. GIBBONS, ADAMS and Circuit Reargued HASTIE, Before Chief Judge, SEITZ, DUSEN, AL- VAN DISERT, ADAMS, GIBBONS ROSENN, Judges. Circuit SEITZ, Judge, Before and HAS- TIE, ALDISERT, DUSEN, VAN ADAMS, GIBBONS, ROSENN, Cir- Judges cuit as amended. THE

OPINION OF COURT PER CURIAM: 2, 1970, appellant On December called as witness before the United Jury Grand the Eastern Pennsylvania trict of which was ducting possible vio- (1964), as lations of 18 U.S.C. § V, amended, 1952(b) (Supp. 1970) foreign (interstate and travel or racketeering transportation in en- aid of terprises). He refused to answer relating investigation, as- Judge, Adams, serting privilege against dissented and Circuit self-incrim- appropriate notice and ination. After the dis- an order court entered grant- 1970) 18 U.S.C. ing appellant transactional directing him to prosecution, Jury, appear before relating questions propounded himto produce request- books, papers, or evidence January 27, 1971, appellant ed. On peared *2 500 by accepted questions on nesses this court. certain has been refused to answer place ground his In the Matter of No. 71- that to do so would danger grave (filed May 28, 1971). security from in 1088 The district life must, adjudging

persons Fol- had threatened him. a who refusal, lowing a contempt, notice on due witness in civil afford to this hearing hearing in an resulted was held which that a on his contention witness adjudging appellant privileged in con- civil order that he is not be- to directing imprisonment testimony tempt and his cause his a would constitute contempt by purged by himself of until disclosure con- Government pr testifying. this From that order tents fruits of electronic sur- against is taken. veillance directed him. Even though appellant’s counsel, in mistaken contempt At States, su- reliance Carter v. United appellant district for called to the pra, may have waived such Jury’s attention that court’s upon such a waiver not be relied to resulted from followed and give validity to ef- coercive extensive electronic surveillance conduct- fect of the civil confinement order. government agents pursuant ed court order. No motion for adjudging appellant The order in civil III, pursuant was made to Title Omni- directing imprison- Act bus Crime Control Safe Streets ment will be vacated and the cause re- manded to the district court for further 1970), being appellant’s then counsel proceedings consistent with this grand jury that witness The mandate will issue forthwith. standing lacked to make such a motion Jury proceeding.1 ap- in the Judge (dissenting): ADAMS, Circuit peal appellant con- contends that tempt order should be reversed In this case declined to testi- hearing, prior case remanded for a an asserting fy, his Fifth Amendment adjudication contempt, of civil then re- to remain silent. He validity permitting electron- but ceived “transactional” contends, Appellant ic surveillance. fur- refusing persisted ther, if the surveillance was opinion, testimony, such in his privileged he should be not to great danger placed have him in from fore the Grand the contents about persons claimed unnamed whom he any intercepted communication or against retaliate him. The evidence derived therefrom. not consider this applicability excusing Appellant’s propriate view of the basis grand jury testifying, of 18 wit- him con- U.S.C. 2515 and cited Appellant’s my argument, counsel referred Carter is that stand —at least States, (9 go 417 F.2d 384 Cir. if I were to trial 1969), defending cert. denied U.S. 90 S.Ct. indicted an individual 12). (1970) (Tr. indicating L.Ed.2d 807 to the Court challenge Later lie said: would wish to the admissi- “My bility position the basis of would be this : of the evidence on course, I do this is [sic]. not at Of only taps in the information has This is different situation. pro- stage, illegal manner, grand jury there is no in an secured attorneys being any inquiry by can vision which defense any immunity challenge the evidence or U. S. from Mr. Maratea torney may presenting illegal.” (Emphasis based —is 16-17.) jury.” (Tr. supplied.) (Tr. 15.) Honor, getting at, Your “What appreciate and I think Your Honor can raised Mr. “The second issue tempt. theAt time, indicated, Shantz is first grand jury interrogation is aris- followed and ing were con- of wire out surveillance from electronic resulted agents by special agents Feder- ducted ducted Investigation. *3 al order, Bureau of directed court correct, it the ba- “Mr. Shantz is was suppress filed had been motion to No entirely sis of almost of the infor- suggestion made was ever and no pellant us we mation that motivates had im- the court order been Mr. Maratea. The wire properly or that the electronic entered taps in authorized beyond both cases were au- the bounds surveillance was judges court; of one order. Nor was thorized the court Judge Lord, other and the any in the District claim either there Judge Kraft, C. William Junior. the Fourth or Court rights or Fifth Amendment Amendment rights “Mr. Shantz said that until an indict asserted of had not been ment is handed down there would be knowledge regard- of a lack way no he could attack rights. ing such them. This incorrect. The statute 25-16, 17 and 18 under which Section Indeed, the notes of 18, pro provide statutory of Title contempt hearing reveal that Maratea's ceeding aggrieved, whereby anybody specifically aware counsel was any include court decisions court-ordered body has whose voice been—whose questioning for the before the intercept communications have been jury. The United States Assistant anyone aggrieved may ed;' apply to suggested torney counsel to Maratea’s pro the court that a motion to 18 U.S.C.A. apply may of the wire ceeds might (a) made in be preventing any use for an order their underlying warrant, af- that the including grand where, jury proceed might fidavit, authorizing wiretaps ings. pro has done in other It been adversary examined in an be ceedings jurisdictions. I’m —in sugges- rejected squarely Counsel jurisdiction. in this That is not sure tion. any application. don’t know January 1971, 27, counsel for Mar- suppressions yet, but the statute does explained atea he had to the Court that orderly provide regularized lawful supporting reviewed the affidavits procedure whereby any individual authorizing interception of warrants judicial apply to courts for review the previously communication to which Maratea was authorized party. stated, Counsel tap suppression if and for ás judicial result of that the wire review “I do not at tap improperly autho is found be wiretaps informa- improperly executed.” rized tion has secured in an January 27, 1971, 26-27). pp. any manner, (sic) being in- quiry by im- Moreover, present and Maratea munity attorney at fact consulted with his from Mr. Maratea is based —is hearing declined when his p. illegal.” (N.T. 1971, 27, raise have had un- 15.) [Emphasis added.] Act of der the Omnibus Crime Control Attorney day 18 U.S.C.A. §§ On the same stated, took the 2518. At the response witness stand and in unwise be to reverse the District attorney tions from his own made failing Court to hold a clear for his refusal request, which Maratea declined to al- was his fear of harm though cognizant completely he was public.1 from unnamed members of the hearing might the fact such have been Jury Proceedings, In In Grand Harris- conducted. . burg, Pennsylvania: Matter Egan (Third Circuit, May 28, 1971), majority opinion pointed page

out at 4 that there

specifically alleged had District electronic surveillance illegal practices and other em- *4 ployed against Egan her.2 is Therefore NATIONAL LABOR RELATIONS distinguishable present case, from the BOARD, Petitioner, holding and I see no reason to extend the Egan. SERVICE, OGLE PROTECTION INC. showing al., Respondents. one made such as the et appellant here, no ba- I there is believe No. 21049. judg- sis, to reverse the United States Court an Alder- ment of or to order Sixth Circuit. man-type ques- not reach the

Such decision does

tion virtue whether judgment of civil of a nature future retract compel Alderman

waiver and In the District Court.

present I think record of this “By ence to ings might, damage are now the information that which “Q. “A. Yes. fore that ented to His Honor “A. “Q. “Q. Mr. “A. ments “A. “Q. And your predicated reference Mr. Shantz: Now, Is that Yes, Yes, I before the United January 27,1971, you that I have made have heard. could family? facing? the three named Maratea, have testimony you might that’s morning? refuse to either did. to the situation a true statement of on the fact or would cause reference you you true.” you also heard hear when with p. 19). you to His States Grand specific individuals related to which not heard morning you proceed- give member Honor repre- refer- argu- fact? you felt 2. “Before poena which veillance.” tention Egan grounds, America all or some of which as follows: [*] provincial cations throughout indieted cured within Sister “Four, “A. the church [*] her propounded caused refused by illegal on *_ jury, I have been named one of which the Roman and answer monitored the evidence and which co-conspirator, respectfully headquarters the United States.” the Government involve in New specifically between —that wiretaps. to her objected, questions, telephone Catholic prompted is following questions decline the United once York, her communications electronic subpoenaed flowed primary con- again, on several the offices as Rome Church inter communi- grounds: addition, to sub- a non- Sister alia, sur- my se-