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August 3, 1977


The opinion of the court was delivered by: BRODERICK


 On July 28, 1977, in a hearing held in open Court, Alan John Yuch was found to be in civil contempt for failing to testify before the grand jury. The Order of the Court directing that the witness be confined pursuant to 28 U.S.C. § 1826 was stayed by the Court, and bail was granted pending appeal.

  On March 21, 1977, the witness was subpoenaed to appear before a grand jury in the Eastern District of Pennsylvania which is in the process of investigating the distribution of illegal drugs in this area. At the time the witness was serving a term of incarceration imposed by the United States District Court for the Northern District of California for conspiracy to violate the Federal Controlled Substance Law relating to the manufacture and distribution of methamphetamine. Upon motion of the Government, the Court granted immunity to the witness pursuant to 18 U.S.C. § 6001 et seq. On April 27, the day the witness was scheduled to appear before the grand jury, he filed motions to: continue his grand jury appearance; quash the subpoena; compel the Government to make certain disclosures; rescind the immunity order; and hold a hearing on the immunity order. An in camera meeting was held in chambers on that date, and the Court continued the grand jury appearance pending a hearing on May 2. On May 2, the witness filed a supplemental motion claiming, inter alia, that he had been the subject of unlawful electronic surveillance. He listed four telephone numbers regularly used by him that he wanted the Government to check. An in camera hearing was held on May 2. After argument on the motions the parties agreed that the Court would vacate the immunity order that had been entered and the Government would submit a new immunity order after consultation with the attorney for the witness. On May 25, the Court entered an immunity order agreed upon by the parties.

 On July 20, at an in camera meeting in chambers, the Government advised the Court that the witness had appeared before the grand jury and refused to testify. The Court signed a show cause order directing the witness to appear for a contempt hearing on July 28. Both the Government and the witness filed memoranda.

 At the contempt hearing the witness contended that he should not be held in contempt for the following reasons: (1) the immunity order was defective on its face because it was not entered under 21 U.S.C. § 884 with an express prohibition on dissemination of such compelled testimony under 21 U.S.C. § 873(a)(4); (2) that the immunity order was defective because the Court declined to order the Government to make a pre-testimony certification of all known evidence; (3) that the Government's affidavit denying the witness's claim of unlawful electronic surveillance is insufficient.

 As to (1), the witness's objection is now moot since the Government has agreed to treat the witness's grand jury testimony in such a manner that 21 U.S.C. § 873 shall have no application thereto and has agreed to not exchange such testimony with any other Federal, State or Local Governmental officials or agencies except Federal prosecutors and Drug Enforcement Administration agents assigned to the case.

 As to (2), the Court ruled that the law as it presently exists, which places the burden on the Government to show that it obtained its evidence independently of the witness's testimony, gives adequate protection to the witness in the event he is subsequently indicted. Kastigar v. United States, 406 U.S. 441, 460-61, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

 As to (3), the Court ruled, for the reasons explained hereinafter, that the Government's denial of illegal electronic surveillance was sufficient.

 After the Court made these rulings, the witness was called to the bar of the Court and advised that he would be given until the next meeting of the grand jury on August 3 to testify. The witness advised the Court that when he appeared he would again decline to testify and that he wished to appeal the Court's ruling. It was agreed by the parties that it would not be necessary for the witness to again appear before the grand jury and decline to testify. The Court then held the witness in contempt of court.

 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. 18 U.S.C. § 3504 provides in pertinent part:

(a) In any . . . proceeding in or before any court, 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. When a grand jury witness raises such a claim, it is well settled that § 3504 requires the Government to affirm or deny the occurrence of such surveillance. An insufficient denial is just cause for refusing to answer ...

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