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United States v. Huss

decided: June 26, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
RICHARD HUSS, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, V. SHELDON SEIGEL, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, V. JEFFREY H. SMILOW, APPELLANT



Kaufman, Chief Judge, Smith, Circuit Judge, and Bryan,*fn* District Judge.

Author: Kaufman

IRVING R. KAUFMAN, Chief Judge:

On January 26, 1972, a bomb exploded in the New York City offices of Columbia Artists Management, Inc., and in the offices of the internationally renowned impresario Sol Hurok, also in New York City. One life was lost, that of Iris Kones, as a result of these senseless and cowardly acts of violence. On June 19, 1972, Stuart Cohen, Sheldon Davis and Sheldon Seigel were indicted in the Southern District of New York for the bombing and charged with violations of 18 U.S.C. §§ 844(i) and 2.*fn1 A superseding indictment, filed on July 3 and sealed until December 8, 1972, charged the original three defendants and a fourth, Jerome Zellerkraut, with the two counts noted above, and, in addition with conspiracy, and the unlawful possession of explosive devices, 26 U.S.C. §§ 5845(a) (8) and (f), 5861(d) and 5871.

On February 2, 1973, three days before the expected commencement of the trial in the district court, the government moved to sever Sheldon Seigel from the trial on the grounds that Seigel was a government informer who had provided information leading to the indictments, that he had testified before the grand jury, and that he would be called as a witness at trial, under a grant of immunity. Seigel, through his counsel, moved for an order preventing the government from calling him as a witness on several, at once independent and connected, grounds -- some novel, all complex. In essence, Seigel objected to any questions the government intended to ask him which were based on information gleaned from illegal electronic surveillance and violations of his constitutional rights. Pursuant to 18 U.S.C. § 3504(a)(1),*fn2 the government affirmed the existence of illegal F.B.I. wiretapping involving Seigel. Accordingly, in response to Seigel's motion, the district judge commenced a taint hearing to determine the validity of Seigel's claims.*fn3 On April 25, 1973, Judge Bauman denied the motion for a protective order and filed a careful, thorough and knowledgeable opinion in support of his decision.

Trial commenced on May 30 and, on the following day, Sheldon Seigel was called as the government's first witness. Apart from stating his name and address, Seigel refused to answer questions posed to him by the Assistant United States Attorney, and persisted in his refusal even after being ordered to answer by the court. Seigel was held in civil contempt, pursuant to 28 U.S.C. § 1826(a),*fn4 and was released on bail. After the following witness, Richard Huss, was called, but before a question was put to him, Judge Bauman adjourned the trial for one week, during which time the government was directed to determine whether the Central Intelligence Agency had conducted electronic surveillance of several persons involved in the case and to so advise the court. On June 8, 1973, the government denied the existence of such electronic surveillance as to Seigel and all others involved in this case. It then agreed to vacate the outstanding order of civil contempt against Seigel, recalled him to the stand, conferred immunity upon him, and once again questioned him with respect to the Hurok bombing. Seigel refused to answer, in defiance of an order to do so by the trial judge, and was again held in civil contempt. Release on bail followed once more. Richard Huss and Jeffrey Smilow were then called to testify as witnesses and, despite grants of use-immunity, they too refused to testify. They were held in civil contempt and committed to a federal detention center for a period not to exceed the duration of the court proceedings, but in no event in excess of eighteen months, or until they themselves decided to unlock the jailhouse door by agreeing to testify. 28 U.S.C. § 1826(a). Thus far, they have not chosen to do so.

These three judgments of civil contempt, dated June 8, 1973, form the basis of this expedited appeal. By statute, an appeal from an order of confinement for civil contempt must be disposed of as soon as practicable, and in no event later than thirty days from the filing of such appeal, 28 U.S.C. § 1826(b). The need for a speedy decision in this case is especially compelling because the trial, with the jury empaneled, currently stands in adjournment. The government has stated that its entire prosecution depends upon the testimony of these three reluctant witnesses -- Seigel, Huss and Smilow -- and that without their assistance, compelled or otherwise, the prosecution will be dismissed. The court, mindful of its ultimate responsibility, has expedited its decision by devoting its attention almost exclusively to this appeal.

I.

A few prefatory remarks on the posture of the case before us are appropriate. The legal issues involved in this appeal are set in a context that unfortunately highlights the seamiest aspects of the criminal law and its enforcement. Although the facts with respect to the criminal charge currently pending before Judge Bauman have as yet not been determined, the indictment concerns the commission of crimes which already have taken a grievous toll -- the loss of a human life. The hearings conducted by the able district judge revealed the existence of two sets of F.B.I. wiretaps, which the government concedes lack any legal authorization. Judge Bauman also concluded that an automobile search involved in this case, conducted by New York City police, violated the Fourth Amendment. It was the court's judgment that the government's version of what had actually occurred in connection with the car search, "strain[ed] common sense" and was "patently unbelievable." The case also involves the use of an informer, always unpleasant business despite the conceded importance of informers for the administration of criminal justice. Given this context it should hardly be surprising to learn that the informer, Sheldon Seigel, adopted some of the tactics of those with whom he associated and himself surreptitiously recorded many conversations with a New York City detective to whom he reported, and on at least one occasion, even with an Assistant United States Attorney. Thus in the midst of so much deceit and lawlessness, we are called upon to render a decision that serves the cause of justice. When, under such circumstances, the court, as an engine in the pursuit of truth, is compelled to decide which of the two competing parties is more unbelievable, that engine is put under extraordinary strains in its effort to keep its commitment to the rule of law. In such instances, courts quite understandably would prefer to avoid any choice at all. Since this option is foreclosed to us, we proceed to a resolution of the issues presented.

II.

It is appropriate that Sheldon Seigel, the focus of so much investigative attention, and the principal subject of inquiry during the hearings conducted by the district judge, should occupy centerstage in this opinion. We shall discuss and decide his claims first and then proceed to a consideration of the Huss and Smilow appeals.

28 U.S.C. § 1826(a), the statutory provision under which Seigel was held in civil contempt, authorizes such contempt when a witness refuses, inter alia, to comply with an order of a court to testify, "without just cause." It is Seigel's assertion that he had ample just cause to withhold his testimony. Briefly stated, Seigel's view is that questions which the government proposed to ask him in connection with the Hurok bombing derive from unlawful government electronic surveillance involving interception of his conversations at the Brooklyn offices of the Jewish Defense League and at his home. Furthermore, Seigel asserts that in connection with information discovered by means of illegal electronic surveillance, the government was enabled to elicit facts from him during his "informer" period, because of a massive invasion of his constitutional rights. In sum, his contention is that, in one way or another, he was coerced or pressured into cooperation with government officials, that such pressure stemmed directly from illegal wiretapping and ancillary constitutional violations, and that all prosecution questions asked at trial are tainted and, therefore, subject to suppression. With this summary in mind,*fn5 we proceed to a discussion of the facts which are relevant to our decision.

In October, 1970, acting solely under a direction of then Attorney General John Mitchell, the F.B.I. installed a so-called domestic security wiretap on the New York office of the Jewish Defense League. The surveillance, conducted without judicial sanction, continued until July 2, 1971. The government concedes that these taps were unlawful. It tells us that the tapes of this surveillance were destroyed, a fact not without significance, but that summary logs of the tap disclosed that Seigel had been overheard on six occasions.

On April 22, 1971, while the F.B.I.'s JDL tap was in operation, a bomb exploded at the offices of the Amtorg Trading Corporation, the home of the Russian Trade Mission in New York. A New York City Police Department investigation of this bombing, which we shall discuss at greater length in a subsequent portion of the opinion, led ultimately to physical surveillance of Sheldon Seigel, commencing on June 3, 1971, which in turn resulted in Seigel's arrest the following day, in a Manhattan parking garage. At that time, Seigel's car was searched -- illegally as the trial judge concluded. The search disclosed fragments of wire, several pieces of plastic, a can of mace, a small film capsule filled with gunpowder, a cardboard tube with an attached fuse and ten empty alarm clock boxes. Seigel's automobile was impounded, and on June 29, 1971, he was indicted, on state charges, for possession of explosives.

The district judge's opinion relates the following subsequent events:

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 Firearm 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.

These discussions between Seigel and government officials were conducted in the absence of his attorney, Harvey Michaelman, Esq., one of the many attorneys who had volunteered their services to the JDL, who had been retained by Seigel shortly after his arrest on June 4. On approximately August 9, 1971, Detective Parola arranged for the return of Seigel's car. Shortly thereafter, Seigel admitted that he had participated in the Amtorg bombing and agreed to cooperate in the official investigation of JDL activities. The circumstances leading to this agreement merit some discussion.

During his direct testimony at the taint hearing, Detective Parola stated that he had become familiar with the type of explosive device used in the Amtorg bombing when one such bomb, which did not explode, was dismantled by a member of the police department's bomb unit. Analysis disclosed that wire seized from Seigel's car and wire used in making the Amtorg bomb were similar. Parola testified -- and we note that this testimony was given prior to a finding by the district judge as to the illgality of the car search -- that he, and his partner Detective Gibney, met with Seigel some time during the summer of 1971. In Parola's words: "We drove up and we did speak to him in the car at that time and we explained to him that we did find the wire in his car, and the gloves, and we did find -- we did trace component parts like the micronta timer that was bought in the store in his neighborhood, and we related certain facts to thim [sic] that we did have available that led us to believe that he was one of the people who made that bomb." In describing Seigel's response, Parola said: "At that time he just sort of looked at us in amazement, and he said, 'How can I believe that this is true?' And we said, 'You can take our word for it, we do have it, you know it was in the car, you saw it was in the car.'" Parola related a subsequent conversation which apparently occurred after the return of Seigel's car, in which he said: ". . . we referred to the fact that we would like him to give us a hand on the Amtorg case after telling him about the fact that we did remove the wire, and we went into that phase of our investigation, that most of the wire and the gloves, and whatever we found in his car pointed to him as being one of the perpetrators."

On September 8, 1971, approximately one month after Seigel's agreement to cooperate with Parola, he was indicted by a federal grand jury in the Eastern District of New York for the Amtorg bombing. His "cover" was thus protected. Although Assistant United States Attorney Pattison, who was in charge of the prosecution, had stated in a note, given by him to Parola and then by him to Seigel, that Seigel would be given immunity in the Amtorg case, it is unclear whether Seigel knew that he could not be prosecuted under any circumstances, or believed only that he would not be prosecuted if he continued to cooperate with government officers. On one occasion Seigel indicated to Pattison that he wished to discuss his cooperation and the question of immunity with his attorney, Michaelman, but Pattison advised against it. Parola, by his own testimony, stated that he repeatedly advised Seigel not to discuss the question with Michaelman, or at least to get a lawyer who would be independent of the JDL. In any event, naming Seigel as a defendant in the Amtorg case prevented immediate disclosure of his informer status, a situation which served both the government's and Seigel's interests.

Thereafter, Seigel continued to speak frequently with Parola and Gibney, and to provide information concerning planned JDL activities against Soviet officials and offices. On December 15, 1971, however, without Seigel's knowledge, the government initiated warrantless electronic surveillance on his home telephone, and the F.B.I. overheard many of his conversations. The surveillance, whose illegality is conceded by the government, was maintained through March 1, 1972. The dates, of course, are highly significant, at least in Seigel's eyes, inasmuch as the span embraces the date of the Hurok bombing, January 26, 1972. The tapes of these interceptions were also destroyed by the government. After the Hurok incident, Parola attempted to elicit information from Seigel regarding JDL involvement in the affair. It was not until May 7, 1972, however, that Seigel disclosed to Parola the names of the participants in the Hurok and Columbia bombings including his own. It is but another indication of the furtive and devious character of those who engage in these diabolical activities that Seigel himself had participated in the Hurok and Columbia bombings, even while serving as a vital government informer.

III.

At the threshold, we must consider whether Seigel should not have been permitted to raise the issues of illegal electronic surveillance and unlawful invasion of his constitutional rights, as a defense of "just cause" in ...


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