Petitioner points to three aspects of this denial as defective. First, he contends that the government must affirm or deny the fact of surveillance, not merely make a conclusion as to the legality of any possible eavesdropping. Motion to Quash Affidavit, P 7. Second, he argues that the government must make inquiries of all agencies involved in the underlying investigation, identify each involved agency, and state that no other agencies were involved. Id. P 8. Finally, petitioner says that the affiant must be the person who searched the government's records. Id. P 9. The United States, citing Freedman, 529 F.2d at 550, argues that it may make its denial as vague as petitioner's averments.
Petitioner's first point is directed to the government's failure to deny surveillance; the affidavit in this matter denies illegal surveillance. The Third Circuit discussed this issue in In re Horn, 458 F.2d 468, 471 & n.7 (3d Cir. 1972). There, the government initially denied all electronic surveillance. Id. at 469 n.3. The court observed that the government had made an identical denial of all surveillance regarding another witness, but actually intercepted conversations of the other witness. The government contended that the interceptions did not constitute "electronic surveillance" because they had the consent of one party. The court reacted by saying: "If this is the Government's position, we see no reason why it should not be so stated in the affidavit." Id. at 471 n.7. The court also stated a broader, more general rule that "it would be desirable for the Government's affidavit to contain a more complete statement setting forth whether there had been any wiretapping or electronic surveillance including that which the Government considers to be legal." Id. at 471 (emphasis in original).
A close reading of the statute supports this statement. The statute requires the government to "deny the occurrence of the alleged unlawful act." 18 U.S.C. § 3504(a)(1). This language implies that the government must deny the occurrence of an act, rather than give its opinion on the legality of any possible eavesdropping.
While the statute is not totally unambiguous, the legislative history lends no support to the contrary proposition.
Thus, under the case law, statute, and circumstances of this case, the government must affirm or deny surveillance.
Furthermore, the government must deny not only surveillance by one agency, but by the government. This denial necessitates a check of other agencies. No Third Circuit case allows a lesser showing, In re Yuch, 437 F. Supp. 775, 778 (E.D.Pa.1977); see, e.g., United States v. D'Andrea, 495 F.2d 1170, 1173 & n.10 (3d Cir.), cert. denied, 419 U.S. 855, 95 S. Ct. 101, 42 L. Ed. 2d 88 (1974); In re Freedman, 529 F.2d at 550 n.9; Weiner, 418 F. Supp. at 948. In Horn, the Third Circuit went further in stating its belief "that the number of cases involving questions of electronic surveillance ... would be greatly reduced were the Government to indicate with some specificity which "appropriate agencies' were in fact contacted." 458 F.2d at 471. Thus, the government's denial also is deficient in failing to contact and name other agencies.
Third, petitioner argues that the affidavit must be signed by the person who checked the government's surveillance records. He cites Horn in support of that contention. The affidavit in Horn, however, gives no hint that the affiant personally made the check. 458 F.2d at 469 n.3 (affiant "caused inquiry to be made"). No other Third Circuit opinion supports this argument. Thus, the government's denial may be based on hearsay, and the affidavit suffices in this regard.
Finally, the sparsity and vagueness of the affidavit deserve special comment. In trying to cut its response to the bone, the government inevitably fuels suspicion that illegal surveillance may have occurred, thus multiplying the amount of electronic surveillance litigation. See Horn, 458 F.2d at 471.
Here, the witness first raised surveillance questions in June, and the government, as of September 28th, still argued that its response was adequate. In the meantime, there have been several motions and a hearing. The grand jury has been deprived of evidence which is "essential and necessary." Memorandum of Law in Support of Government's Answer to Motion to Quash Subpoena, Exhibit A, P 2. It is possible that the witness will demand another hearing. If the government's response is vague enough, such a hearing may be necessary. Thus, to the extent that case law may be unclear about the requirements discussed here, they are warranted in this case in order to aid the grand jury and avoid unnecessary extended litigation.
I have reviewed petitioner's remaining objections to the subpoena and order, and find them without merit.
Accordingly, a separate impounded order will issue staying enforcement of the subpoena until the government makes an adequate response.