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UNITED STATES v. WEINER

July 13, 1976

THE UNITED STATES
v.
IN RE GRAND JURY PROCEEDINGS: SUBPOENA OF JAY WEINER; THE UNITED STATES v. IN RE GRAND JURY PROCEEDINGS: PHILLIP KENT SHINNICK



The opinion of the court was delivered by: NEALON

 Nealon, United States District Judge.

 In order to isolate the issues raised by the motions in question, their statutory framework must first be set forth. 28 U.S.C. § 1826(a) authorizes a court to confine a witness who refuses "without just cause" to testify before or provide other information or materials to a grand jury when ordered by the court to do so. If the questions posed to the witness or the requests for other information or materials have been based on information derived from illegal electronic surveillance, then "just cause" not to answer or respond exists. Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972). To facilitate the determination of whether information was derived from illegal electronic surveillance when a witness claims that such surveillance has occurred, 18 U.S.C. 3504 provides in pertinent part:

 
"(a) In any . . . proceeding in or before any grand jury . . .
 
"(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act."

 Section 3504(b) defines an "unlawful act" as one involving illegal wiretapping or electronic surveillance. In the instant case, the witnesses have asserted that the subpoenas were based on information obtained from illegal electronic surveillance, and the government has denied any connection between the subpoenas and electronic surveillance of any kind. The dispositive questions here are whether the parties have satisfied the requirements of Section 3504(a)(1).

 At the outset, before analyzing the particular contentions and representations of the parties, it would be well to put this case in proper perspective. This is not a normal case of limited interest involving routine investigative efforts. The "Patty Hearst case" aroused unusual and nationwide interest and concern that exerted an undue amount of public pressure on the government to apprehend Miss Hearst and her Symbionese Liberation Army captors. This pressure undoubtedly stimulated special law enforcement efforts to locate her, including the possible participation of agencies in addition to the F.B.I. Under these circumstances, the possibility that extraordinary measures such as electronic surveillance were used in the investigation seems greater than in most cases. Mindful of the nature and scope of this case, as well as of the court's responsibility under Section 3504 to determine whether proceedings have been tainted by illegal electronic surveillance, see infra, it would seem that the government's response should be as unambiguous, unequivocal and reliable as reasonably possible, and should be more dispositive of the possibility of electronic surveillance than in a less extraordinary case. In the usual case which does not have any significance extending beyond this district, the affidavits of the U.S. Attorney and the F.B.I. agent in charge of the case may suffice but this is not such a case.

 It should also be pointed out that this case does not present the situation of an interruption of proceedings of a grand jury that is presently in session and awaiting the appearance of the witnesses who have filed motions resisting an appearance. The grand jury is not currently in session and no date has been fixed for the appearance of the witnesses involved. While the factor of grand jury delay is, nevertheless, still important, it is not as crucial as it might be were the circumstances different from what they are here.

 In support of their assertions of illegal electronic surveillance, both Weiner and Shinnick have filed affidavits describing clicking, hollow and banging sounds and other audio interference during conversations on their telephones and on telephones that they customarily use, especially, in the case of Weiner, during conversations with other persons who were questioned or sought for questioning by the F.B.I. in connection with the Patricia Hearst case. In addition, Weiner describes two coincidences that may be explainable only by wiretapping: on one occasion, he received a telephone call from Jack Scott, warning him that the F.B.I. may question him, and the next day Weiner was visited by F.B.I. agents who asked him about Jack Scott; on another occasion, soon after Weiner's mother told someone over the telephone that Weiner was on his way to Oberlin, Ohio, from Philadelphia, Weiner was apprehended by F.B.I. agents shortly after his arrival in Oberlin. Shinnick alleges no such coincidences, but does state that information was relayed to him from an acquaintance that ". . . the State Police and the F.B.I. had been doing wiretaps the weekend of my visit on Nantucket." Affidavit of Phillip Kent Shinnick, attached to Motion to Quash Subpoena, para. 15. On the basis of these assertions, both witnesses have asked that the government disclose the records of any electronic or other surveillance of any conversations to which they were parties, as well as of any communications at several locations and over several telephones, including the residences and telephones of their attorneys and several other telephones whose numbers the witnesses have listed in connection with the motion.

 The government conceded at oral argument that the witnesses' assertions of illegal electronic surveillance amount to "claims" under Section 3504, and thus have triggered its obligation under the statute to "affirm or deny the occurrence of the alleged unlawful conduct." The government denies the existence of such surveillance, and, therefore, the critical question here is whether, in the context of this case, that denial is sufficient to satisfy the statute. The government's response to both witnesses is an affidavit by Laurence M. Kelly, an Assistant United States Attorney for the Middle District of Pennsylvania, who is participating in the investigations and who caused the subpoenas at issue to be served. *fn2" With respect to both witnesses, Mr. Kelly states that the source of information leading to the subpoena, and upon which any questions or requests will be based, is the "testimony of Patricia Hearst given at her bank robbery trial between February 9, 1976 through February 20, 1976, in the U.S. District Court for the Northern District of California, No. 74-364 OJC.", Affidavit Denying Electronic Surveillance, para. 4; that the subpoenas are not based on any electronic surveillance at any location; and that he is unaware of any electronic surveillance of the witnesses. In addition, with respect to Weiner, the affidavit states that a check was made with seven federal agencies that customarily conduct electronic surveillance, and that, based on the results of that check, as of the summer of 1975, "there has been no electronic surveillance occurring on premises known to have been owned, leased or licenses by Jay Weiner . . ." Affidavit Denying Electronic Surveillance, para. 10. *fn3" The affidavit concerning Shinnick makes reference to no agency check whatsoever.

 The government makes a two-pronged argument that its affidavits here are sufficient. It argues first that, regardless of whether there has in fact been any electronic surveillance of the witnesses in this case, the affidavits have obviated the possibility of any nexus between such surveillance and the grand jury proceedings, in that the affiant, the Assistant United States Attorney in charge of the investigations who caused the issuance of the subpoenas in question and who will determine what questions are addressed to the witnesses, has stated that he is unaware of any electronic surveillance of the witnesses. Moreover, the government points out, Mr. Kelly has affirmatively identified the source of the present grand jury proceedings -- the trial testimony of Patricia Hearst. Because Section 3504 is only concerned with whether something is the "product" of unlawful surveillance, rather than with the unlawful act itself, the government concludes, its affidavits in this case are sufficient. The government's position is contrary to the plain meaning of the statute's language, is inconsistent with the cases construing Section 3504, and fails to satisfy the court that the subpoenas in question are not the product of unlawful activity.

 Upon a claim that evidence is the product of illegal electronic surveillance, Section 3504 requires the government to "affirm or deny the occurrence of the unlawful act." It is clear from the plain meaning of the language of the statute that the government's response should go to the existence of the unlawful activity itself, and should not be concerned with the connection such activity may have with the proceedings at issue. The latter is for the court to determine, once the government has completed its function under the statute. In re Testa, 486 F.2d 1013, 1016 (3d Cir. 1973). Thus the language of the statute suggests that the adequacy of the government's response depends on the sufficiency of its denial of the existence of electronic surveillance of the witnesses, and not on the relationship of the affiant to the proceedings and whether he is in a position to conclude that there could be no nexus between those proceedings and any unlawful activity.

 If the government's position were correct, then all that would be required in every case where a "claim" of illegal electronic surveillance has been made would be a denial by the prosecutor that the proceedings have been tainted by unlawful activity, regardless of whether he is in a competent position to know whether unlawful activity has in fact occurred. The cases which have evaluated the sufficiency of a denial under Section 3504, however, have almost all involved affidavits or other documents by persons in a position to know about the existence of electronic surveillance. Most often, the denials contain the results of a so-called "agency check" of the federal agencies that customarily conduct electronic surveillance. See e.g., In re Freedman, 529 F.2d 543 (3d Cir. 1976); In re Horn, 458 F.2d 468 (3d Cir. 1972). The courts have frowned upon " To my knowledge" affidavits by persons not in a position to ...


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