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In re Horn

decided: March 14, 1972.


Van Dusen, Adams and Hunter, Circuit Judges. Adams, Circuit Judge (concurring).

Author: Per Curiam


Zoia Horn appeals from an order of the District Court holding her in civil contempt pursuant to 28 U.S.C. § 1826 for refusing to testify in the trial of United States v. Ahmad, et al., Cr. No. 14,950, M.D.Pa., after having been granted immunity from prosecution in accordance with 18 U.S.C. § 2514.*fn1

In January of 1971 Mrs. Horn had been called to testify before a Federal Grand Jury which subsequently returned numerous indictments in United States v. Ahmad, supra. See infra n. 10. She testified at that time after having been granted immunity. On January 12, 1972, she was subpoenaed by the Government to testify in the trial of that case and pursuant to 18 U.S.C. § 2518(10) (a)*fn2 moved to suppress on the ground that her subpoena and the resulting questioning represented the product of unlawful wiretapping or electronic surveillance. In response, Deputy Assistant Attorney General A. William Olson filed an affidavit (the "Olson Affidavit"*fn3) dated January 6, 1972, denying any surveillance activities against Mrs. Horn. Counsel for Mrs. Horn moved to strike the affidavit as legally insufficient. The District Court, however, after oral argument, but without holding an evidentiary hearing, denied counsel's various motions.*fn4 When subsequently called to testify on February 23, Mrs. Horn, after answering a number of preliminary questions, refused to testify on Fifth Amendment grounds. The Government applied for a § 2514 immunity order which was granted by the District Court after a hearing. On February 28 the Government called Mrs. Horn to testify on its behalf. She refused to answer any questions, citing conscience*fn5 as well as her desire to obtain appellate review of the District Court's orders.*fn6 The District Court warned appellant that her refusal to testify in light of the § 2514 immunity order would constitute civil contempt and allowed her four days to reconsider her position. On March 3 appellant once again refused to testify and was committed to the custody of the Marshal "until the end of the trial of United States v. Ahmad, et al., supra, or until such time as she purges herself of this contempt." This appeal followed.

In urging remand, counsel for Mrs. Horn raises, inter alia, the following issues;

1) Whether the District Court erred in denying appellant's § 2518(10) (a) motion to suppress without an evidentiary hearing; and

2) Whether the Government's immunity application was legally sufficient and whether the District Court erred in granting that application without making a factual inquiry into its sufficiency under 18 U.S.C. § 2514.

When a witness files a petition to suppress pursuant to 18 U.S.C. § 2518(10) (a), the Government is obligated to "affirm or deny the occurrence of the unlawful act." 18 U.S.C. § 3504(a) (1). It may do so by affidavit. In the Matter of Grumbles, 453 F.2d 119 (3d Cir. 1971). If the affidavit is sufficient on its face and the petitioner offers nothing to indicate that the affidavit is false or defective, the trial court has the power to deny the petition. Grumbles, supra, at 122. Although our decision in Grumbles certainly does not foreclose an evidentiary hearing where appropriate, we held in that case that since the petitioners had not presented "any evidence demonstrating that these representations by the Government [were] false," id. at 122, a hearing was not warranted. In so holding we cited In re Idella Marx, 451 F.2d 466 (1st Cir. 1971) and Russo v. United States, 404 U.S. 1209, 92 S. Ct. 4, 30 L. Ed. 2d 13 (Douglas, Circuit Justice, 1971). Appellant here claims that Grumbles does not apply to the instant case because the Government's affidavit denying surveillance, in addition to being based on hearsay, was identical to an affidavit concerning another witness which subsequently proved to be misleading and/or inaccurate. Appellant also contends that certain additional facts including the unavailability of her telephone records (indicating the possibility that they had been turned over to the FBI) and "unusual clicking and hollow sounds from time to time" over her telephone in Lewisburg are cumulatively sufficient indicia of illegal surveillance to warrant an evidentiary hearing. We disagree.

Although the Olson affidavit is far from a "model" either in terms of its scope or forthrightness, it is nevertheless substantially the same as the Government's affidavits denying electronic surveillance held sufficient in Marx and Grumbles, supra. The instant case, as well as Marx and Grumbles, however, makes clear that it would be desirable for the Government's affidavit to contain a more complete statement setting forth whether there had been any wiretapping or electronic surveillance including that which the Government considers to be legal under, inter alia, 18 U.S.C. § 2511(2) (c).*fn7 We believe also that the number of cases involving questions of electronic surveillance contemplated by our opinion in the Egan case, supra n. 7, 450 F.2d at 216, would be greatly reduced were the Government to indicate with some specificity which "appropriate agencies" were in fact contacted.

Finally, as to Mrs. Horn's allegations*fn8 concerning noises heard over her telephone lines, we do not consider such an assertion sufficiently substantial to warrant a different result than in Grumbles, supra.*fn9 Given the particular circumstances of the case and the paucity of evidence presented by the petitioner, the District Court was correct in denying a hearing. See Nardone v. United States, 308 U.S. 338, 312, 60 S. Ct. 266, 84 L. Ed. 307 (1939).

Appellant's argument that the Government's immunity application was defective since it was not personally approved by the then Attorney General, John Mitchell, must also be rejected. Section 2514 requires that any application for immunity must have the "approval of the Attorney General." 18 U.S.C. § 2514, supra n. 1. Mrs. Horn's immunity application was requested by S. John Cottone, the United States Attorney for the Middle District of Pennsylvania with the approval of the Attorney General. It is set out in full in the margin.*fn10 Counsel contends that the failure of Attorney General Mitchell personally to approve and sign the authorization letter voids the entire application procedure. We cannot agree.

Here the United States Attorney for the Middle District of Pennsylvania has affirmatively represented to the District Court that his immunity application had been approved by Attorney General Mitchell. In Re Zoia Horn, M.D.Pa., Misc. p. 2 (Filed February 23, 1972). This has not been contraverted and there is no reason to consider that the facts are otherwise. Even if this were not the case we believe that the provisions of 28 U.S.C. § 510,*fn11 allowing the Attorney General to delegate his authority in certain cases, are applicable to the Attorney General's power to approve applications for immunity under Section 2514. See December 1968 Grand Jury v. United States, 420 F.2d 1201 (7th Cir. 1970), cert. denied, Domenico v. United States, 397 U.S. 1021, 90 S. Ct. 1260, 25 L. Ed. 2d 531 (1971), cf. United States v. Robinson, 468 F.2d 189 (5th Cir. 1972). Pursuant to 28 U.S.C. § 510, the Attorney General has delegated the approval authority to various, specified Assistant Attorneys General -- including the Head of the Internal Security Division -- with the limiting proviso that the Assistant Attorney General for the Criminal Division must also approve each application. 28 C.F.R. 0.175 (December 23, 1970).

The record includes an undated letter to United States Attorney Cottone from Robert C. Mardian, the Assistant Attorney General for the Internal Security Division, granting approval for the application. The letter notes that "the Acting Assistant Attorney General for the ...

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