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In re Millow

decided: January 13, 1976.


Appeal from an order of contempt for failure to answer questions before a grand jury, entered in the United States District Court for the Southern District of New York, by Lawrence W. Pierce, Judge. Appellant contends that the government has not fulfilled its obligation to affirm or deny the existence of unlawful electronic surveillance pursuant to 18 U.S.C. § 3504. Affirmed.

Lumbard, Friendly, and Mulligan, Circuit Judges.

Author: Lumbard

LUMBARD, Circuit Judge:

Francis Joseph Millow asks us to vacate an order of the Southern District entered on October 31, 1975, under which he has been confined pursuant to 28 U.S.C. § 1826(a) for failure to answer questions before a grand jury. Millow asserts that he was entitled to withhold his testimony because the government admitted that it had obtained evidence that served as the basis for questions propounded by the grand jury through the illegal use of wiretapping. Alternatively, Millow maintains that he is excused from answering questions because the government has not fulfilled its obligation to affirm or deny the use of illegal wiretaps as required by 18 U.S.C. § 3504.*fn1 We find no merit in either assertion and affirm the order of contempt.

In early October 1975, Millow was summoned before a federal grand jury investigating possible violations of laws prohibiting the operation of illegal gambling businesses and the general conspiracy statute, 18 U.S.C. §§ 371, 1955. After several delays at Millow's request he moved to quash his subpoena on the grounds that his testimony was unnecessary to a conviction and that he should be granted a hearing to determine whether the grand jury had employed the product of illegal wiretaps as the basis of his interrogation. At a hearing on October 28, 1975, the government produced the orders issued by Westchester County Court Judge Rubin that authorized interception of Millow's telephone lines by members of the Westchester County District Attorney's Office for a sixty-day period in 1974.*fn2 After a review of the order and the affidavits and applications on which it was based, Judge Pierce found them facially sufficient and denied Millow's motion to quash.

Millow then appeared before the grand jury on October 29, 1975, but invoked his right against self-incrimination and refused to answer questions. Millow was then granted immunity under 18 U.S.C. § 6002. Nevertheless, Millow continued his refusal to testify on the ground that he was appealing the denial of his motion to quash.*fn3

On October 31, 1975, the Special Attorney in charge of the government's investigation requested that Judge Pierce find Millow in contempt and confine him in prison without bail pursuant to 28 U.S.C. § 1826(a). Judge Pierce heard arguments on the contempt and bail issues and received an affidavit from Millow asserting that his failure to testify was justifiably predicated on illegal wiretapping of his telephone line that allegedly had been conceded in a statement by the Special Attorney to Millow during the October 29 grand jury proceedings. Millow also contended that he should neither be held in contempt nor be ordered to testify because the government had not denied under oath that it had engaged in illegal wiretapping. Judge Pierce rejected Millow's arguments and ordered him confined until he was willing to testify or until the expiration of the grand jury's term.

On November 14, 1975, a panel of this court denied Millow's motion for bail pending appeal of his contempt citation but expedited the appeal which we heard on December 2, 1975.*fn4 At that time we indicated our affirmance of the order of confinement and we issue this opinion to supplement that judgment. Cf., United States v. Hunt, 513 F.2d 129 (10th Cir. 1975).

We hold that it was sufficient for the government to show that there was a valid court order authorizing a wiretap in answer to Millow's charges of illegally obtained evidence. Judge Pierce was clearly correct in rejecting Millow's claim that the government's statement was proof that it had violated the order, as it is clear that the statement showed nothing of the sort.

Millow's original request for a hearing on the existence of any wiretap was based on his attorney's knowledge that some electronic surveillance had been used in the investigation of other persons involved in the same activities that led to the examination of Millow and on the mere suspicion that some of the wiretaps might have been placed on Millow's telephone lines without an appropriate court order.*fn5 The government responded to this demand by presenting to Judge Pierce the court orders issued by Westchester County Court Judge Rubin and the affidavits submitted at the time that order was requested. After a review of this material, Judge Pierce found that there had been a sufficient basis for authorizing the wiretap.

The government's submission of a court order authorizing electronic surveillance and Judge Pierce's determination of the validity of that order precludes Millow from further litigating in a contempt proceeding the legality of that surveillance. In In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 42 L. Ed. 2d 158, 95 S. Ct. 199 (1974), this court confronted a claimed inconsistency in a statute that forbids the use in grand jury proceedings of evidence derived from illegal wiretapping, 18 U.S.C. § 2515, and yet precludes the use of suppression hearings of the type Millow originally requested to determine the legality of the seizure of evidence to be used in grand jury proceedings, 18 U.S.C. § 2518(10)(a). We resolved the ambiguity by holding that a refusal to testify under 18 U.S.C. § 2515 would be permissible only where the government has admitted its illegal conduct or failed to produce a court order authorizing the challenged surveillance, as in either case a plenary suppression hearing is unnecessary. 491 F.2d at 1162.*fn6

Here, the government has introduced a court order sufficient under Persico to avert further litigation by a subpoenaed witness on the legality of the surveillance. While not asserting that this order is invalid, Millow does contend, however, that the government has conceded the patent illegality necessary under Persico to justify his refusal to testify. We disagree.

Millow rests his contention on what he claims to be an admission made during the October 29 proceedings by the Special Attorney from the Justice Department that the period of electronic surveillance of Millow lasted for two years and thereby exceeded the sixty-day period authorized in the court order obtained in Westchester County. The Special Attorney stated:

"I also want to advise you, Mr. Millow, that you are a target of this investigation and that my questions here today were based upon electronic surveillance, physical surveillance of your movements in the past two years by the Federal Bureau of Investigation and local law enforcement officials, witnesses before this Grand Jury, and ...

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