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UNITED STATES v. DOE

October 9, 1973

UNITED STATES of America
v.
John DOE. In re Subpoena of Daniel CAHALANE


Bechtle, District Judge.


The opinion of the court was delivered by: BECHTLE

BECHTLE, District Judge.

 Following a series of steps, beginning May 3, 1973, having to do with the interest of the Government in securing the testimony of Daniel Cahalane, contemnor herein, and the subsequent grant of immunity by the United States District Court for the Eastern District of Pennsylvania under 18 U.S.C. ยง 6002, on July 13, 1973, 361 F. Supp. 226, the contemnor was eventually taken before the United States District Court on July 26, 1973, following his refusal to testify before the Grand Jury, from which appearance the District Court entered its Order finding the contemnor in civil contempt and directing that he be imprisoned for the life of the Grand Jury or until he should comply by testifying. That contempt Order was appealed to the United States Court of Appeals for the Third Circuit and, after argument, that Court issued its Judgment Order on September 5, 1973, which affirmed the Order of contempt of the lower court, admitted contemnor to bail in the amount of $15,000 and directed that the proceedings be remanded to the District Court so that contemnor's affidavit and the Government's counter-affidavit could be filed in that order within a ten-day period which affidavits were expected to contain the extent to which electronic surveillance of contemnor's counsel may have taken place so that the District Court could thereafter determine what further course of action was appropriate in keeping with the guidelines established by the standards enunciated in the cases of In re Horn, 458 F.2d 468, 470-471 (3rd Cir. 1972) and In re Grumbles, 453 F.2d 119, 122 (3rd Cir. 1971). On September 10, 1973, contemnor filed his affidavit taken by Charles A. Glackin, Esq., and thereafter, on Monday, September 17, 1973, the United States filed its counter-affidavit. In anticipation of the Circuit Court's requirement that this Court make its determination on or before September 20, 1973, this Court furnished notice to all parties concerned on September 14, 1973, that the Court was to convene a conference in open court at which the contemnor was expected to be present, wherein the contents of the affidavits would be examined by the Court and counsel could be heard at that time in respect to their relative positions, which the Court expected to use as a guide in fulfilling its role by September 20, 1973.

 Despite the fact that Charles A. Glackin, Esq. ("Glackin") was contemnor's attorney and contemnor's sole affidavit witness and had received a copy of the Judgment Order of the Circuit Court setting forth a strict fifteen-day requirement for this Court to dispose of this important matter, he apparently decided to take his vacation in Vermont and, thereby, put himself beyond the reach of the Court's notice; which was given in the customary way, as well as by telegram (n.t. 1-7). *fn1" Because of some very general and miscellaneous references by the contemnor's witness, Charles Glackin, in his affidavit to the underlying factual allegations of electronic surveillance of counsel, the Court felt that it was necessary, despite the inconvenience placed upon it because of Mr. Glackin's absence on vacation, to confer at length with contemnor and his counsel, Louis M. Natali, Jr., Esq. ("Natali") in order establish with as much precision as was possible the particulars in respect to the claimed improper electronic surveillance. The record of that conference in open court on September 18, 1973, has been transcribed and is part of the record in this case. The Court then ordered the contemnor to furnish a supplemental affidavit with the following information: (n.t. 49)

 
". . . the contemnor should file with the Court a supplemental affidavit that will support with precision the dates, times, places and numbers that were called, that the contemnor contends contain attorney-client communications between Mr. Cahalane and either Mr. Glackin or Mr. Natali, but presumably no other attorney because on this record, he was not represented by any other attorney.
 
"THE COURT: And the Court is expecting the contemnor to supplement its affidavit in regard to those numbers in respect to any claimed conversations in which Mr. Cahalane was not a party, but which he contends are nevertheless involved in his right under the circumstances I mentioned, to counsel.
 
"The Court wants a separate supplement indicating the dates, the numbers called to, and the numbers called from in which any such conversation took place together with, in regard to those calls, a summary or a statement as to why that touches upon the attorney-client relationship."

 On September 25, 1973, which was then the time permitted by the Court for the contemnor to file this supplemental affidavit, it filed its "reply affidavit."

 Parenthetically, the reason why the Court specified in its Order at the last paragraph that it sought sufficient detail, including a summary of the subject matter of any calls touching upon the attorney-client relationship, was to aid it, hopefully without having to convene an additional hearing, in evaluating the affidavits and, if necessary, a transcript of the electronic surveillance between June 5 and June 20, 1972, of the Annie Mitchell telephone. Contrary to the Court's Order, the reply affidavit, in respect to the Mary Kennedy calls, was very vague and miscellaneous in nature and not responsive to the Court's Order. The particular paragraph offered in the contemnor's affidavit in this respect is on page 2 and reads as follows:

 
"Mr. Glackin has no available records of his telephone calls to Mary Kennedy or the Irish Northern Aid Committee. However he believes that most of these calls, beginning in June of 1972, were local calls made while he was in New York. These calls were generally initiated from Mr. O'Dwyer's office telephone, 212-BO-9-3939." (Emphasis added.)

 The notes of testimony of the proceeding on September 18, 1973, at pages 15 to 18, cover the subject of calls to this phone where Government electronic surveillance was admitted to have been made. Because of the completely opposite position taken by contemnor from the underlined portion of the reply affidavit set forth above and the following excerpt appearing on page 18 of the notes of testimony of the hearing of September 18, 1973, the Court found it necessary to conduct still an additional hearing in order to question Mr. Glackin under oath.

 
"THE COURT: Do you know where he called from when he called?
 
"MR. NATALI: Mr. Glackin did not initiate any of the calls which is the ...

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