The opinion of the court was delivered by: BAUMAN
On February 2, 1973, three days before the trial in the above entitled action was due to commence, the government disclosed in open court that Sheldon Seigel, one of the defendants, had provided the government with the information that led to the instant indictment, and had testified before the grand jury. The government further announced its intention of calling Seigel as a witness, under a grant of immunity, at the trial. The government's motion to sever Seigel's trial from that of the defendants Cohen and Davis was thereupon granted.
This disclosure, of which the remaining defendants had been apprised on January 26, 1973, has resulted in the multiplicity of motions which are now before this court. The defendants Cohen and Davis moved to dismiss the indictment on the ground that the presence of a government agent in the defense camp constituted a violation of their right to counsel secured by the Sixth Amendment. Seigel's motion is both more novel and more complex. He seeks an order preventing the government from calling him as a witness at the trial of Cohen and Davis or, at the very least, preventing the government from asking him any questions based on evidence obtained in violation of his constitutional rights. Seigel adduces four separate but interrelated arguments in support of this motion: a) all disclosures made by Seigel to the government derive from illegal wiretaps of Seigel's telephone conversations both at Jewish Defense League headquarters and at his home; b) all such disclosures also derive from an illegal search of Seigel's automobile on June 4, 1971; c) Seigel was promised by government representatives that if he furnished the information that forms the basis of this indictment, he would not be called as a witness at the trial, and the government must now be held to this promise; d) the information elicited from Seigel was obtained in violation of his Sixth Amendment right to counsel. An evidentiary hearing was held by this court over a period of two weeks during which various other motions, ancillary to those already set forth, were made and they shall also be treated below.
A brief exposition of the history of Seigel's involvement with the government and of the origins of the instant prosecution will be helpful in giving context to the parties' legal arguments. Although there are sharp factual disputes, the brief ensuing narrative will refer only to those facts which are undisputed.
On June 4, 1971 Seigel was arrested along with Israel Danziger at the Meyers Brothers parking garage at 149 West 49th Street in Manhattan by Detective Jeremiah Howard of the New York City Police Department. His car was searched and was found to contain, inter alia, fragments of wire, several pieces of plastic, a can of mace, a small film capsule filled with gunpowder, a cylindrical cardboard tube containing a fuse, and ten empty alarm clock boxes. Seigel was subsequently taken to the 18th Precinct station house, booked, and released. His car was impounded.
Seigel repeatedly tried to obtain the return of his car, without success. During these efforts he came in contact with a number of law enforcement officials, among whom were: Melvin Glass, then an Assistant District Attorney for New York County, now a judge of the New York City Criminal Court; Thomas Pattison, an Assistant United States Attorney for the Eastern District of New York; Michael LaPerch of the Alcohol and Firearms Division of the U.S. Treasury Department; and Detectives Santo Parola and Joseph Gibney of the New York City Police Department. All of these men, especially Parola, who was to develop a close and continuing relationship with Seigel, attempted to induce him to cooperate with various law enforcement authorities in their investigation of the activities of the Jewish Defense League, particularly with reference to the bombing of the offices of the Amtorg Trading Corporation on April 22, 1971.
Early that August, Parola succeeded in returning Seigel's car and shortly thereafter (on August 9, by Parola's recollection) Seigel admitted his participation in the Amtorg bombing and agreed to cooperate with the ongoing investigation. On September 8, 1971, Seigel testified before a federal grand jury in the Eastern District of New York and what may be called the Amtorg indictment was returned that same day.
One day later Seigel was arrested along with the other defendants in the case, in order to conceal his cooperation with the government. He continued to meet frequently with Parola and Gibney, who attempted to mine whatever other nuggets Seigel might have about other J.D.L. activities.
On January 26, 1972, the offices of Hurok Artists, Inc., and Columbia Artists Management, Inc., were bombed. Parola apparently did not suspect Seigel's participation in this bombing, and Seigel did not disclose his role to Parola until May 7, 1972. On June 16, 1972, Seigel testified before the grand jury of this court which returned the so-called Hurok indictment. Until late October, no one outside the government knew of Seigel's double role; it was only then that his attorney discovered his client had been an informer.
Seigel now seeks to prevent the government from calling him as a witness at the trial of defendants Cohen and Davis, even under a grant of immunity. He argues that any conceivable question that could be put to him at trial would be based on information secured in violation of his constitutional rights. See United States v. Calandra, 465 F.2d 1218 (6th Cir. 1972), cert. granted, 410 U.S. 925, 93 S. Ct. 1357, 35 L. Ed. 2d 585 (1973). In Calandra the Sixth Circuit held that a grand jury witness, for whom the government had requested immunity, had standing to move to suppress evidence obtained in violation of rights secured to him by the Fourth Amendment. I accept that holding and conclude that Seigel may challenge all of the alleged violations of his constitutional rights. To rule otherwise would permit the government, when it has obtained evidence illegally, to confer immunity on a defendant and then circumvent the effect of the exclusionary rule by prosecuting him for contempt.
Although Seigel has not yet been called as a witness, and not yet granted immunity, I have concluded that his claims can be considered most efficiently at this juncture. The situation here is the same as faced the district court in Calandra. I find its view compelling:
"It is the position of the Government that this motion is premature because it is being considered prior to the grant of immunity rather than in connection with a contempt hearing. This Court cannot agree. It has been stipulated that the Government intends to immunize Calandra and that Calandra intends not to answer its questions even at the risk of a contempt citation. Thus in substance, the situation is in the same posture as it would be in connection with a contempt hearing. The scope of review is no larger here than it would be after Calandra had gone through the revolving door which would bring him back here raising the same issues in a defense to a contempt citation." In re Calandra, 332 F. Supp. 737 (N.D. Ohio 1971).
Accordingly, I adopt its procedure.
The four activities which allegedly violated Seigel's constitutional rights have already been set forth; it is important to point out, moreover, that Seigel argues not only that each of those activities furnishes an independent basis for suppressing his testimony, but that they form an interlocking chain of causation which resulted in his furnishing information to the government. The causal linkage he perceives may be summarized as follows. The government first focused upon Seigel as a suspect in the Amtorg bombing because of conversations overheard on an unlawful wiretap installed at the J.D.L. headquarters early in 1971. This knowledge, gleaned through wiretaps, enabled the government immediately to identify Seigel as the purchaser of a quantity of wire and batteries at a Brooklyn store called the Radio Shack on June 3, 1971. Thus Seigel was placed under surveillance on June 4, 1971 and ultimately arrested at the Meyers Brothers garage on that same day. At the garage Seigel's car was subjected to an illegal search, the fruits of which have already been described. This arrest, in turn, placed Seigel at the mercies of various government officials who further violated his constitutional rights by eliciting information from him in the absence of counsel and who, indeed, actively discouraged Seigel from disclosing any of his meetings with these officials to his lawyer. In addition, the information was allegedly obtained from Seigel on the express understanding that he would never be required to testify, either in the Amtorg or Hurok cases. Thus Seigel argues that each link in the chain that led to his disclosures contains its own illegalities and is also tainted by the original illegality of the wiretap. I therefore propose to examine each "link" in turn.
Seigel's first argument is that any questions which the government might put to him at trial would be based on information derived directly or indirectly from two concededly unlawful wiretaps: 1) a tap of the offices of the Jewish Defense League maintained from October, 1970 to July 2, 1971
and 2) a tap of Seigel's home telephone maintained from December 15, 1971 to March 1, 1972.
Seigel's standing to object to questions posed to him is confirmed by the recent decision of the Supreme Court in Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). Gelbard held that a grand jury witness who refused to answer questions was entitled, in a contempt proceeding pursuant to 28 U.S.C. § 1826(a),
to invoke the prohibitions of 18 U.S.C. § 2515
as "just cause" for refusal to answer such questions. This latter statute, a provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, states, in pertinent part, that "[whenever] any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this chapter." The Court reasoned that "to order a grand jury witness, on pain of imprisonment, to disclose evidence that § 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents." 408 U.S. at 51, 92 S. Ct. at 2363.
Gelbard's significance lies in its holding that Title III may be invoked not only by a defendant in a criminal case to exclude evidence at trial, but also by a witness, even one who has been granted immunity.
A witness thus comes within the definition of "aggrieved person", 18 U.S.C. § 2518(10)(a), with standing to, in effect, suppress his own testimony even in a criminal proceeding against another person. Seigel is thus clearly entitled to the protection of Gelbard in the trial of Cohen and Davis.
The theory on which Seigel relies to substantiate his claim of wiretap taint is that enunciated in United States v. Tane, 329 F.2d 848 (2d Cir. 1964). Our Court of Appeals held that where the identity of a witness was first discovered by the government from an unlawful wiretap, the entire proffered testimony of that witness must be suppressed. See also, Smith v. United States, 120 U.S. App. D.C. 160, 344 F.2d 545 (1965); United States v. Alston, 311 F. Supp. 296 (D.D.C. 1970). Seigel urges that his identity as an active member of the J.D.L. was first revealed by the tap of J.D.L. headquarters in 1971; thus the government was put on the trail that ultimately led to the search of June 4, 1971 and thence to Seigel's cooperation. Seigel further contends that the taps of his home in 1971 and 1972 disclosed to the government his participation in the Hurok bombing. After a careful review of the testimony adduced at the hearing, I have concluded that the evidence supports neither of these contentions.
Before reviewing the evidence, a word about burden of proof is indicated. The government's task here was to demonstrate, by a preponderance of the evidence, that Seigel's identity was not revealed by the illegal J.D.L. wiretaps and further, that its information about Seigel's role in the Hurok bombing did not derive from the wiretaps of Seigel's home. United States v. Cole, 463 F.2d 163 (2d Cir. 1972); United States v. Friedland, 441 F.2d 855 (2d Cir. 1971) cert. denied 404 U.S. 867, 92 S. Ct. 143, 30 L. Ed. 2d 111 (1971); United States v. Schipani, 414 F.2d 1262 (2d Cir. 1969). See also Lego v. Twomey, 404 U.S. 477, 487-489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).
The evidence presented at the hearing established that the government's investigation came to focus on Seigel in the Amtorg case in the following manner. An unexploded bomb recovered in the Amtorg case made use of a Micronta timing device. The police determined that such devices were sold only by Radio Shack, Inc., a chain which has several stores in New York City. The police ultimately learned that two such timers had been purchased at a Radio Shack store at 13th Avenue in the Borough Park section of Brooklyn by one "Feldman" one day prior to the Amtorg bombing.
On June 3, 1971 Detective Parola received a telephone call from the manager of that store who stated that the person who had purchased the timers had just purchased a substantial quantity of wire and a box of twenty-four batteries. The manager noted that the purchaser was driving a gold Volvo, whose license number he recorded on the sales slip. A check of the car registration records revealed that ...