ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. MISC. 7823)
Before Adams, Van Dusen and Higginbotham, Circuit Judges.
Author: Higginbotham; Garth
In Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972), the Supreme Court held that a grand jury witness had "just cause" to refuse to answer a question if the question was based on information obtained from an electronic wiretap already determined to be illegal. In this case we must examine an issue expressly left open in Gelbard whether a grand jury witness, who has refused to answer a question based on a facially valid court ordered wiretap, has a right to challenge the legality of the wiretap by examining government documents supporting the court order and by presenting evidence purportedly to show the insufficiency of these documents. 408 U.S. at 61 n. 22, 92 S. Ct. at 2368. Because we conclude that the district court impermissibly barred access by the witness to these documents and failed to provide any hearing to present other defenses to his refusal to testify, we will vacate its order holding the witness in contempt.
John Harkins appeared before a federal grand jury in the Western District of Pennsylvania on March 26, 1980. Invoking his fifth amendment right against compulsory self-incrimination, he refused to answer any questions other than his name and address. The United States Attorney immediately went before a District Judge of the Western District of Pennsylvania seeking use immunity for Harkins' testimony pursuant to 18 U.S.C. §§ 6002 and 6003 (1976). Although the court granted immunity to Harkins, he expressed to the court his continued intention not to answer any questions. The court instructed the parties to set a date for a contempt hearing, but the United States Attorney requested that the date not be set until after Harkins returned to the jury and specifically refused to answer questions after the grant of immunity. The court acceded to the request, explicitly noting that the contempt hearing would be arranged and held after that point.*fn1 Harkins refused to testify and a date for a contempt hearing was subsequently set for April 7, 1980.
On April 7, rather than holding a contempt hearing, the district court only considered a motion by the United States Attorney to quash subpoenas recently served by Harkins on three assistant United States Attorneys and two F.B.I. agents. In these subpoenas Harkins had sought assorted information about the grand jury investigation and, in particular, the use of electronic surveillance as the basis for questions to be asked of Harkins.*fn2 Harkins was informed by the government at the hearing that at least some of the questions were based on electronic surveillance, but the district court quashed the subpoenas on the ground that the witness had no right to any further information.
The hearing that day was not a contempt hearing, as the court specifically noted, but rather a hearing to consider the motion to quash.*fn3 When Harkins' counsel informed the court that Harkins would no longer make a general refusal to testify, the court allowed Harkins to return to the grand jury to answer questions. He warned Harkins, however, that if he "persists in his refusal to testify, I will then consider contempt." App., at 16. (emphasis added). He subsequently informed the parties:
If (Harkins) does not testify, they are going to bring him back here and there will be a contempt hearing this afternoon, if the Grand Jury is sitting today. We will have the hearing this afternoon. (Harkins) will be entitled to make a defense if (Harkins) wish(es).
App., at 18. (emphasis added) Later that afternoon the government advised the court that the grand jury which originally interrogated Harkins was not sitting that day. Thus, the government decided to delay Harkins' testimony until the 28th when that grand jury would be sitting.
On the 28th, however, before appearing before the grand jury, Harkins made a motion to quash the government's subpoena on the ground that the questions he would be asked were based on illegal wiretaps of his communications. The district judge held a hearing that morning in which the government claimed that the questions were based on a legal wiretap authorized by court order. The court examined in camera the court order, and the Attorney General's application and the accompanying affidavit,*fn4 and found them facially valid. It denied Harkins' further request for a full fledged hearing on the legality of the wiretap, which evidently would have required access by Harkins to these documents and to the surveillance logs,*fn5 and ordered Harkins to testify.
Harkins appeared before the grand jury, and responded to some questions, but refused to answer five of the questions posed. When he was returned to the court, the district judge denied his request for a contempt hearing and immediately held him in contempt for refusing to answer a grand jury question without "just cause" in violation of 28 U.S.C. § 1826(a) (1976).*fn6
Harkins has appealed the finding of contempt to this court on two grounds.*fn7 First, he argues that the district court did not provide him with an adequate hearing to establish that the questions he refused to answer were based on an illegal wiretap of his communications. He claims that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (the Act), requires that he be given access to the government documents supporting a facially valid court ordered wiretap in order to assess its legality. The Act, he further suggests, gives him the right to a plenary hearing in order to introduce witnesses and evidence challenging the sufficiency of these documents. Neither was provided by the district court in this case. Second, Harkins argues that the district court failed to give him any hearing at all on any of the ...