In Re Grand Jury Proceedings, Doe
988 F.2d 211 | 1st Cir. | 1992
USCA1 Opinion
March 25, 1993 Opinion 92-1906 has been reissued as
PUBLISHED as of 3/25/93.
November 4, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1906
IN RE: GRAND JURY PROCEEDINGS
JOHN DOE,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Robert L. Sheketoff and Sheketoff & Homan on brief for
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appellant.
A. John Pappalardo, United States Attorney, Michael J.
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Tuteur and Ernest S. Dinisco, Assistant United States Attorneys,
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on brief for appellee.
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Per Curiam. Agents of the federal government, in
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the course of conducting court-authorized electronic
surveillance during a criminal investigation, intercepted
communications which involved the appellant. The appellant
later was called to testify before a federal grand jury
sitting in the District of Massachusetts. He refused to do
so, citing his Fifth Amendment privilege against self-
incrimination. The government applied for and received a
court order directing the appellant to testify and
prohibiting the government from using his testimony or its
fruits against him in a criminal prosecution. The appellant
still refused to testify. The government petitioned for
an order holding the appellant in civil contempt. 28 U.S.C.
1826(a). It supported its petition with affidavits which
said that the questions it intended to ask the appellant
before the grand jury would be derived in part from the
electronic surveillance mentioned above. The appellant then
filed a "Motion for Disclosure of Electronic Surveillance
Information" which asked the court to instruct the government
to disclose certain information relevant to the government's
request for permission to conduct that surveillance.
Invoking the need for secrecy to protect the ongoing
grand jury investigation, the government produced only
abridged copies of the documents requested. The court
conducted a contempt hearing at which it ruled on the
adequacy of the government's response. Before the hearing,
the district judge had reviewed and compared the expurgated
and unexpurgated versions of the documents. At the hearing,
the judge ruled (a) that the government had "an obligation to
preserve the secrecy of the grand jury," (b) that he did not
see anything in the deleted material "that could be of value
to [the appellant]," and (c) that after reviewing the
unabridged documents he had concluded that the appellant
"does not have any basis, that I can see, to challenge the
validity and constitutionality of the [electronic
surveillance]." The court ordered the appellant to testify,
and when he again refused, judged him in contempt. An appeal
followed.1
I
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A grand jury witness who refuses to testify without
"just cause" may be held in civil contempt, and confined
until he agrees to testify, or, if he persists in refusing,
for the life of the court proceeding or the term of the grand
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1. The district court issued the contempt order on July 14,
1992, and the appellant immediately filed his notice of
appeal. This court docketed that appeal as No. 92-1859. On
July 17, however, the appellant filed a motion for
reconsideration in the district court. "[T]he filing of such
a motion automatically cancels the effect of having earlier
filed a notice of appeal." In re Public Service Co. of New
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Hampshire, 898 F.2d 1, 3 (1st Cir. 1990). See also Griggs v.
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Provident Consumer Discount Co., 459 U.S. 56, 61 (1982)
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(effect of Rule 59 motion on previously filed notice of
appeal is that "appeal simply self-destructs").
Consequently, the appellant voluntarily dismissed appeal No.
92-1859 and filed this appeal. He also waived the
requirement that recalcitrant witness appeals be decided
within 30 days of the district court's contempt order.
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jury, but in no event longer than eighteen months. 18 U.S.C.
1826(a). A showing that the questions put to the witness
were based on illegal electronic surveillance constitutes
"just cause" for his refusal to testify and precludes a
finding of contempt. Gelbard v. United States, 408 U.S. 41
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(1972); Grand Jury v. Gassiraro, 918 F.2d 1013, 1014 n.1 (1st
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Cir. 1990) (per curiam). Thus, although 18 U.S.C.
2518(10)(a) "gives no standing to a prospective grand jury
witness to be heard on a motion to suppress, 2515 allows
such a witness to assert, in defense of a contempt
proceeding, the grounds enumerated in 2518(10)(a)(i), (ii),
and (iii)." In re Lochiatto, 497 F.2d 803, 806 (1st Cir.
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1974).2
The witness' right to assert these defenses, however, is
not unqualified. In particular, the availability of defenses
challenging the legality of the electronic surveillance does
not imply "unconditional accessibility to all facts which
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might be relevant. . . ." Id. at 807. The documents used to
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obtain an "intercept" order, the order itself, and the
documents reflecting the results of the electronic
surveillance, may contain "sensitive material" which, if
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2. Under 18 U.S.C. 2518(10)(a), an "aggrieved person" may
challenge an intercepted wire or oral communication on the
grounds that (i) the communication was unlawfully
intercepted, (ii) the order of authorization or approval
under which it was intercepted is insufficient on its face,
and (iii) the interception was not made in conformity with
the order of authorization or approval.
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disclosed, would threaten the safety of witnesses or
otherwise impede the grand jury proceedings or the
government's investigation. Id.
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In order to achieve the "triple objective" of minimizing
delay, securing the government's interest in secrecy, and
protecting the witness' right to assert his statutory
defenses, in Lochiatto we established the following ground
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rules. First, if the government does not object "upon
grounds of harm due to breach of secrecy," the witness is
entitled to inspect these limited materials: the authorized
application of the Attorney General or his designate, 18
U.S.C. 2516(1), the affidavits in support of the intercept
order, the order itself, and an affidavit submitted by the
government indicating the length of time the surveillance was
conducted. Id. at 808. No evidence need be provided the
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defendant for the purpose of litigating the issues of truth
of statements made by affiants or the "minimization" of
federal officials in monitoring conversations. Id.
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Second, if the government does object to production on
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secrecy grounds, the district court must determine whether
the secret information can be "successfully deleted or
summarized and access to the excerpted material granted."
Id. If the district court decides that "so much of the
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material is of a sensitive nature that revelation of any of
it would prejudice the government, the court must then review
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the material in camera to determine the constitutional and
statutory validity of the application and the court order
based on the warrants, and compliance by the government with
the court ordered time limits on surveillance." Id. The
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district court has "wide discretion" in implementing these
procedures.
In this case, the district court gave the appellant all
the protection that Lochiatto requires. It first ruled that
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the appellant "probably did not miss too much from the
redacted to the unredacted, except . . . names and places."
We see no abuse of discretion in this conclusion, or in the
district court's decision not to "summarize" the redacted
material for the appellant.
At that point, having decided that the secret
information could be "successfully" deleted (that is, deleted
without destroying the appellant's ability effectively to
prepare a defense), the court might have concluded its
discussion, leaving it to the appellant to frame his own
challenges to the legality of the electronic surveillance.
Instead, the district judge went on to perform the latter
half of the Lochiatto analysis, saying that he had reviewed
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the unabridged documents in camera, and that
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[t]he Attorney General's authorization has been
provided. The justification has been provided.
The affidavit has been provided. . . . [The
appellant] does not have any basis, that I can see,
to challenge the validity and constitutionality of
the process. The electronic surveillance was
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conducted pursuant to a court order and was
authorized. That is not a basis for [the
appellant] to refuse to testify.
We can find no fault with this conjunctive approach. It
provided the appellant with an added layer of protection,
assuring him that the district court had reviewed the deleted
material with his statutory defenses in mind. Where, as
here, the deletions were fairly extensive if not
qualitatively significant, the court's caution was laudable,
and certainly not abusive of its wide discretion.3
II
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After the district court issued its contempt order, the
appellant filed a notice of appeal, then moved for
reconsideration in the district court. At the government's
urging, the district court denied the motion on the ground
that the filing of the appeal had divested it of jurisdiction
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3. The appellant's brief focuses on the district court's
decision to withhold the government's affidavits "concerning
the existence of other surveillances." It is true that when
a witness challenges the legality of the government's
electronic surveillance, the government must "affirm or deny
the occurrence of the alleged unlawful act," 18 U.S.C.
3504, and include in its response "an explicit assurance that
all agencies providing information relevant to the inquiry
were canvassed." In re Quinn, 525 F.2d 222, 226 (1st Cir.
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1975). The appellant contends that the district court should
not have withheld the affidavits containing this assurance.
We have examined the materials in question: they contain
potentially-sensitive information about the nature and scope
of the government's investigation, and we therefore see no
abuse of discretion in the district court's decision to
examine them in camera. We find, moreover, that the
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affidavits gave the necessary assurance and adequately showed
that the grand jury questions put to the appellant were not
derived from any other electronic surveillance source.
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to reconsider the contempt order. The government now
concedes that this position was mistaken. But, whether or
not the district court should have addressed the motion on
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its merits, we need not remand now for it to do so: we have
considered the issues raised in the motion and find them to
be of no aid to the appellant's cause.
The motion to reconsider contained two substantive
challenges to the legality of the electronic surveillance.
Both concerned the memoranda through which responsible
officials of the Justice Department authorized federal
prosecutors in the field to apply for an intercept order.
The record contains three such memoranda, one authorizing the
initial application and two authorizing successive
applications for extensions of the order. Each memorandum
went out under the name of Robert Mueller, the Assistant
Attorney General in charge of the Criminal Division, and each
contained a line for Mr. Mueller's signature, but each
memorandum was in fact signed by a different Deputy Assistant
Attorney General in the Criminal Division: the first by
Robert Bucknam, the second by Mark Richmond, the last by John
Keeney.
Out of this clay the appellant molded his arguments.
First, he contended that the judge who issued the intercept
order and its extensions "was misled as to the official who
authorized the application[s]" because the authorization
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memoranda "purported" to be from Assistant Attorney General
Mueller, but were in fact signed by the various Deputy
Assistants. Second, he noted that 18 U.S.C. 2516(1)
empowers only those Deputy Assistants who have been
"specially designated by the Attorney General" to authorize
applications for intercept orders. The Attorney General's
designation order under which these Deputy Assistants acted,
No. 1348-89, named no names and instead designated by title
"any Deputy Assistant Attorney General of the Criminal
Division." Because the order thus designated every Deputy
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Assistant in the Criminal Division, the appellant said, it
failed to "specially designate" any particular individual.
We recently affirmed the validity of a structurally-
identical authorization memorandum. In United States v.
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Citro, 938 F.2d 1431 (1st Cir. 1991), the authorization
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memorandum, like the memoranda at issue here, carried a
signature line for the Assistant Attorney General in charge
of the Criminal Division, but actually was signed by one of
his Deputy Assistants, who had been identified by title but
not by name in the then-current Attorney General's
designation order. Id. at 1435.
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In Citro, we rejected the appellant's contention that
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designation by title rather than name was insufficient:
Section 2516(1) does not state that the Attorney
General must designate officials by name.
Identification by position is entirely consistent
with the legislative history, which indicates that
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the purpose of the statute was to ensure that
intrusive electronic eavesdropping be authorized
only by a limited group of responsible federal
officials. The statute requires that each of the
officials be able to trace his or her explicit
authority, by designation, to the Attorney General,
an official who, by virtue of presidential
appointment and Senate confirmation, is publicly
responsible and subject to the political process.
The statutory limitations allow the responsible
persons to be identified and encourage consistency
in the policy with which the electronic
surveillance power is used. The Attorney General's
designation of individuals by title is sufficient
to ensure the goals of accountability,
identification and consistency. We see no reason
to construe the statute to impose a technical
requirement that the individuals be designated by
name provided their identities are clearly
ascertainable at any given time.
Id. at 1435-36 (citations omitted). See also United States
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v. Torres, 908 F.2d 1417, 1422 (9th Cir. 1990); United States
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v. Pellicci, 504 F.2d 1106, 1107 (1st Cir. 1974) (per
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curiam).
In Citro we did not say in so many words that an
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authorization memorandum is valid when it contains an empty
signature line for the Assistant Attorney General but goes
out over the signature of a Deputy Assistant. Such a ruling,
however, was implicit in our general endorsement of the
authorization memorandum. In the case at hand, at any rate,
we find no fault in the arrangement of signatures on the
authorization memoranda. The district judge who issued the
intercept order and its extensions could not have been
"misled" in any material sense by the presence of Assistant
Attorney General Mueller's printed name under the signature
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line. The signatures on the memoranda correctly reflected
the identities of the persons who actually gave the
authorizations (i.e., Deputy Assistants Bucknam, Richard and
Keeney) -- each of whom had the statutory power to do so by
virtue of the Attorney General's "special designation." Cf.
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United States v. Chavez, 416 U.S. 562 (1974) (failure to
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correctly identify person authorizing application does not
render electronic surveillance illegal where person who
actually authorized application had power to do so).
The judgment of contempt is affirmed.
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