Reargued En Banc April 5, 1971.
Seitz, Chief Judge, and Hastie, Van Dusen, Aldisert, Adams, Gibbons, and Rosenn, Circuit Judges as amended. Adams, Circuit Judge (dissenting).
On December 2, 1970, appellant was called as a witness before the United States Grand Jury in the Eastern District of Pennsylvania which was conducting an investigation of possible violations of 18 U.S.C. § 1952 (1964), as amended, 18 U.S.C. § 1952(b) (Supp. V, 1970) (interstate and foreign travel or transportation in aid of racketeering enterprises). He refused to answer questions relating to the investigation, asserting his privilege against self-incrimination. After appropriate notice and hearing, on January 25, 1971, the district court entered an order pursuant to 18 U.S.C. § 2514 (Supp. V, 1970) granting appellant transactional immunity from prosecution, and directing him to appear before the Grand Jury, answer all questions propounded to him relating to the investigation and produce any books, papers, or other evidence requested. On January 27, 1971, appellant appeared before the Grand Jury and refused to answer certain questions on the ground that to do so would place his life and security in grave danger from persons who had threatened him. Following this refusal, on due notice a hearing was held which resulted in an order adjudging appellant in civil contempt and directing his imprisonment until he purged himself of contempt by testifying. From that order this appeal is taken.
At the hearing on contempt counsel for appellant called to the district court's attention that the Grand Jury's investigation followed and resulted from extensive electronic surveillance conducted by government agents pursuant to court order. No motion for suppression was made pursuant to Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(10) (Supp. V, 1970), appellant's then counsel being of the view that a grand jury witness lacked standing to make such a motion in the Grand Jury proceeding.*fn1 On appeal appellant contends that the contempt order should be reversed and the case remanded for a hearing, prior to an adjudication of civil contempt, on the validity of the order permitting electronic surveillance. Appellant contends, further, that if the surveillance was illegal he should be privileged not to testify before the Grand Jury about the contents of any intercepted communication or any evidence derived therefrom.
Appellant's view of the applicability of 18 U.S.C. § 2515 to grand jury witnesses has been accepted by this court. In the Matter of Joques Egan No. 71-1088 (filed May 28, 1971). The district court must, before adjudging a grand jury witness in civil contempt, afford to that witness a hearing on his contention that he is privileged not to testify because his testimony would constitute a disclosure by the Government of the contents or fruits of illegal electronic surveillance directed against him. Even though appellant's counsel, in mistaken reliance on Carter v. United States, supra, may have waived such a hearing, such a waiver may not be relied upon to give validity to the ongoing coercive effect of the civil confinement order.
The order adjudging appellant in civil contempt and directing his imprisonment will be vacated and the cause remanded to the district court for further proceedings consistent with this opinion. The mandate will issue forthwith.
ADAMS, Circuit Judge (dissenting):
In this case appellant declined to testify, asserting his Fifth Amendment rights to remain silent. He then received "transactional" immunity but persisted in refusing to testify because such testimony, in his opinion, would have placed him in great danger from unnamed persons whom he claimed might retaliate against him. The District Court did not consider this an appropriate basis for excusing appellant from testifying, and cited him for contempt. At the contempt hearing it was indicated, for the first time, that the grand jury investigation followed and resulted from electronic surveillance conducted by Government agents pursuant to court order, and directed at appellant.
No motion to suppress had been filed and no suggestion was ever made by appellant that the court order had been improperly entered or that the electronic surveillance was beyond the bounds authorized by the court order. Nor was there any claim either in the District Court or on the appeal that the Fourth Amendment rights or Fifth Amendment rights of appellant had not been asserted because of a lack of knowledge regarding such rights.
Indeed, the notes of testimony of the contempt hearing reveal that Maratea's counsel was specifically aware that court-ordered wiretapping was the basis for the questioning before the grand jury. The Assistant United States Attorney suggested to Maratea's counsel that a motion pursuant to 18 U.S.C.A. § 2518(10) (a) might be made in order that the warrant, and its underlying affidavit, authorizing the wiretaps might be examined in an adversary hearing. Counsel squarely rejected this suggestion.
On January 27, 1971, counsel for Maratea explained to the Court that he had reviewed the affidavits supporting the warrants authorizing interception of communication to which Maratea was a party. Counsel stated,
" I do not at this point allege that these wiretaps and that this information has been secured in an illegal manner, and it (sic) being so any inquiry by the grand jury and any immunity and attempt to gain testimony from Mr. Maratea is based upon ...