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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 questions. Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972).

 The Government filed three affidavits pursuant to § 3504. The first was filed by Special Agent Parks of the Drug Enforcement Administration (DEA) and is attached as Exhibit 1. He swore to the following: he is responsible for the DEA investigation in which information concerning the witness was acquired; no other Governmental investigatory agency has ever been involved in this investigation; the DEA has never conducted any electronic surveillance of the witness; the witness was never the subject of any other DEA investigation; and that there was no Government interception of wire communications in connection with this particular investigation except for tape recordings made by Special Agent Parks of his own telephone conversations with certain persons. (Not the witness).

 The second affidavit was filed by L. Marc Durant, an United States Attorney conducting the grand jury investigation. (Attached as Exhibit 2). He swore that he was in charge of and fully familiar with the files maintained by the United States Attorney's Office in this District; that there is no indication in these files that the witness was ever the target of any electronic surveillance; that both United States Attorney's Offices in the Eastern District of Pennsylvania and the Northern District of California (where the witness resides and where he was recently indicted and sentenced) never conducted any electronic surveillance of the witness; that the information which forms the basis for the witness's questioning before the grand jury has all been gathered from direct sources and that none of the information results from any electronic surveillance of the witness, and that the witness will not be asked to testify, directly or indirectly, on the basis of any intercepted wire or oral communications of his.

 The third affidavit (Exhibit 3) is also from Special Agent Parks, and covers the telephone numbers that the witness requested be checked. Parks stated that none of those numbers were ever the subject of electronic surveillance by any DEA agent.

 The witness's claims pursuant to § 3504 are contained in an affidavit of July 20 (attached as Exhibit 4), in which he sets forth three factual allegations. First, he alleged that telephone numbers of a person with whom he was in contact were regularly changed because of "buzzing noises, unexplained background sound, echos on the telephone line".

 Second, the witness alleged that information provided by his counsel showed that the affidavit of Special Agent Parks was inaccurate in at least one material respect. He claimed that his counsel had knowledge through representation of another client that a clandestine recording of a telephone conversation occurred as part of this particular investigation. Because Special Agent Parks stated that no electronic eavesdropping (other than his tapes of calls made by him) occurred with respect to this investigation, the witness alleged that Parks did not make a thorough examination of DEA files.

 The witness's third claim involved the telephone of his employer, the East-West Commodities Exchange, Inc., where he began working in January, 1977. The witness swore that an electronics expert hired by the firm discovered a pen register (a device that records telephone numbers but not conversations), and that a subsequent investigation revealed that the telephone company admitted installing the device at the request of a person whose identity it would not reveal.

 The Government, in its response to the witness's affidavit, pointed out in connection with the alleged pen register incident, that a pen register can record telephone numbers not conversations. Thus, the witness's communications could not possibly have been overheard. The Government also responded to the witness's claim that Agent Parks was unaware of electronic surveillance that occurred in connection with this investigation by stating that the incident to which the witness referred was part of an entirely separate investigation concerning a person who was also being investigated in the instant inquiry but was never overheard in the instant investigation.

 The witness argues that in light of his allegations the Government's denial of electronic surveillance is inadequate and must contain a check of the seven agencies which customarily conduct electronic surveillance. A seven agency check may be required in certain instances, however, we find that in this case the Government's denial is sufficient to satisfy § 3504.

 Although our Third Circuit has considered § 3504 responses, the recent decisions are situations where the Government had done a seven agency check and the witness contended that such a check was not sufficient. Matter of Grand Jury Impaneled, January 21, 1975, 529 F.2d 543 (3d Cir.), cert. denied, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976); United States v. D'Andrea, 495 F.2d 1170 (3d Cir.), cert. denied, 419 U.S. 855, 42 L. Ed. 2d 88, 95 S. Ct. 101 (1974). Our attention has not been called to any case in which the Third Circuit has considered the circumstances under which a lesser showing is sufficient.

 In United States v. Weiner, 418 F. Supp. 941 (M.D. Pa.) aff'd, 546 F.2d 420, 421 (3d Cir. 1976), cert. denied 429 U.S. 1105, 51 L. Ed. 2d 557, 97 S. Ct. 1135 (1977), Judge Nealon ruled upon the sufficiency of the Government's denial of electronic eavesdropping in connection with a grand jury investigation into the harboring of Patty Hearst. Emphasizing the extraordinary nature of the case involving "national overtones", the Court required a seven agency check. Judge Nealon cautioned, however, that in the ordinary case the affidavits of the United States attorney and the agent in charge of the case may suffice. 418 F. Supp. at 944.

 In In Re Grusse, 402 F. Supp. 1232 (D. Conn.), aff'd 515 F.2d 157 (2d Cir. 1975), the District Court held that the Government's denial may properly be based upon an inquiry directed solely to the investigator having supervisory responsibilities for the matter. In that case the Court relied upon an affidavit filed by the Assistant United States Attorney assigned to the matter who had only checked with the FBI. The affidavit in Grusse is far less detailed and informative than the affidavits in the instant case, which reveal all of the surveillance conducted in the entire investigation. As stated by Judge Lumbard in his concurring opinion in the Circuit Court,


It must be remembered that any electronic surveillance by the government is relevant only if it is somehow used in formulating questions that the grand jury intends to ask. Thus, surveillance conducted by the government, the results of which were not known to the agents investigating this case, would not be relevant. . . . I think that the assistant United States Attorney handling a case and the FBI agent in charge of the investigation of a case are the two people most likely to know if the fruits of any electronic surveillance were used to gain information on which the grand jury would base its questions. Thus, I think that the denial was sufficient. (footnotes omitted). 515 F.2d at 159.

 In In Re Quinn, 525 F.2d 222, 226 (1st Cir. 1975), the Court stated:


We think, therefore, that for the § 3504 response to be adequate in this case, there must be included an explicit assurance indicating that all agencies providing information relevant to the inquiry were canvassed. This requirement may be met in various ways. The simplest here might be a representation, by supplemental affidavit, that the Government's questions to Quinn are not directly or indirectly, in whole or in part, the product of information from outside investigations, but that they come exclusively from the investigatory efforts of the two agencies about whose activities Mr. Deachman or Mr. Sawyer have knowledge (viz., the New Hampshire United States Attorney's office and the Bureau of Alcohol, Tobacco and Firearms).

 In the instant case, the Government has stated, through the affidavit of Special Agent Parks, that the Government categorically denies having any information in the file from any other Governmental source. Furthermore, the Government has also unequivocally denied that this witness has ever been the subject of any electronic surveillance by DEA. In addition, the United States Attorney, in his affidavit, stated none of the questions the witness will be asked results from any electronic surveillance of the witness and that the witness will not be asked to testify on the basis of any intercepted wire communications of his. We found that the affidavits of the Government in this case were sufficient and on this basis we held the witness in contempt for his failure to testify before the grand jury.



 AFFIDAVIT [May 25, 1977] Commonwealth of Pennsylvania : ss County of Philadelphia :


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