UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: November 22, 1976.
JERRY LANGELLA, PETITIONER-APPELLANT,
COMMISSIONER OF CORRECTIONS, STATE OF NEW YORK, RESPONDENT-APPELLEE
Appeal from denial of petition for a writ of habeas corpus by the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. Appellant was convicted in state court on plea of guilty to criminal contempt for refusing to answer questions posed by a New York grand jury, and attacks his conviction as in violation of 18 U.S.C. § 2515 and the fifth amendment.
Smith, Oakes and Meskill, Circuit Judges.
Smith, Circuit Judge:
Jerry Langella appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge. Langella argues that his conviction for criminal contempt for refusing to answer the questions of a New York grand jury violates 18 U.S.C. § 2515 and the fifth amendment. We affirm.
In 1972 Langella was subpoenaed to appear before a New York County grand jury investigating the death of Joseph Gallo in April, 1972. On December 19, 1972 Justice Jawn Sandifer, Supreme Court (New York), denied Langella's motion to quash the subpoena. The motion was based on a claim that the questions to be asked by the grand jury were the product of illegal electronic surveillance. Justice Sandifer, on the prosecution's representation that a court surveillance order had been obtained, rejected Langella's request that a hearing be held.
On the same day Langella appeared before the grand jury and was given "transactional" immunity.*fn1 While he answered some questions, Langella refused, after consulting with his attorney, to answer other questions, and on January 16, 1973 he was indicted, pursuant to New York Penal Law § 215.51 (McKinney 1975), for criminal contempt for refusing to answer two questions.*fn2 In June, 1975 Justice George Roberts, Supreme Court (New York), denied Langella's motion to dismiss the indictment, and on June 18, 1975 Langella pleaded guilty. On July 24, 1975 he was sentenced to five months' imprisonment.
On March 4, 1976 the Appellate Division, First Department, affirmed his conviction without opinion, and April 13, 1976 the New York Court of Appeals denied leave to appeal.
Langella then filed a petition for a writ of habeas corpus, which Judge Brieant denied on May 12, 1976. On appeal Langella claims that the grand jury's questions were derived from illegal electronic surveillance in violation of 18 U.S.C. § 2515*fn3 and that it is a violation of the fifth amendment for the same grand jury that heard his immunized testimony later to indict him for contempt.
Before reaching the merits of Langella's claims, we must deal with New York's vigorous argument that this court cannot consider these claims because they were not presented to the United States District Court, because Langella by-passed the New York courts, and because he pleaded guilty. The first two arguments are without merit. Judge Brieant's opinion indicates that the issues were fully presented to the district court. Justice Roberts' opinion and the brief Langella presented to the Appellate Division indicate that the substance of these issues was also presented to the New York courts. Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).
On the third contention, relying on People v. Melton, 35 N.Y.2d 327, 329, 361 N.Y.S.2d 877, 320 N.E.2d 622 (1974), and People v. Lynn, 28 N.Y.2d 196, 201-03, 321 N.Y.S.2d 74, 269 N.E.2d 794 (1971), New York argues that under New York law Langella's claims are not reviewable in New York on appeal after a guilty plea and thus, under Lefkowitz v. Newsome, 420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975), Langella is foreclosed from pursuing these claims in a federal habeas corpus proceeding.
Both Melton and Lynn, however, involve appeals from a coram nobis proceeding in which the defendant initially failed to appeal after pleading guilty. People v. Gleeson, 44 A.D.2d 252, 354 N.Y.S.2d 207, 208 (App. Div. 1974), rev'd on other grounds, 36 N.Y.2d 462, 369 N.Y.S.2d 113, 330 N.E.2d 72 (1975), holds that despite a guilty plea a defendant retains his right to appeal the denial of his suppression motion, pursuant to New York Criminal Procedure Law (NYCPL § 710.70(2) (McKinney 1971).
Judge Brieant held that under Lefkowitz, Langella's plea of guilty did not foreclose his pursuing his claims in a federal habeas corpus proceeding. See also Menna v. New York, 423 U.S. 61, 46 L. Ed. 2d 195, 96 S. Ct. 241 (1975) (per curiam). Lefkowitz involved a fourth amendment claim, and Menna involved a fifth amendment claim. We agree with Judge Brieant that NYCPL § 710.20(2) and § 710.70(2)*fn4 permit Langella to challenge the legality of the electronic surveillance and that NYCPL § 210.20(1)(c) and § 210.20(1)(d)*fn5 (McKinney 1971), permit him to challenge the same grand jury's hearing his testimony and then indicting him.*fn6
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, reh. denied, 419 U.S. 1060, 95 S. Ct. 645, 42 L. Ed. 2d 657 (1974), we held that under 18 U.S.C. § 2515 a witness before a federal grand jury is not entitled to a suppression hearing during the grand jury's proceedings unless (1) there is not a valid court order for the electronic surveillance, (2) the government concedes the surveillance is illegal, or (3) there is a prior judicial determination that the surveillance was illegal. Id., 1162. Section 2515 also applies to a witness before a state grand jury. United States v. Marion, 535 F.2d 697, 701 (2d Cir. 1976).
Langella relies on the first exception set out in Persico. At the December 19, 1972 hearing the prosecutor told Justice Sandifer that Langella's attorney "inquired of me whether or not there was electronic eavesdropping. The people told them [sic] that it was. In addition I told them that we had a Court order" (A. 22). Langella's attorney asked the court to determine whether "all the questions to be asked by the government are based only on lawful interceptions, and not on any other unlawful interceptions" (A. 25). Justice Sandifer denied this request.
In People v. Einhorn, 35 N.Y.2d 948, 365 N.Y.S.2d 171, 324 N.E.2d 551 (1974) (per curiam), the New York Court of Appeals set out the procedure to be followed by a grand jury witness who claims the questions being posed violate 18 U.S.C. § 2515: "The request during the Grand Jury proceeding by the witness that he be brought before the court must be respected and once there the Presiding Justice may make appropriate inquiry whether the witness' objection is sound." Id., 949. The New York procedure, as set out in Einhorn, complies with 18 U.S.C. § 2515.
When the grand jury asked Langella whether he had been receiving messages from Joseph Gorgone about the murder of Joseph Gallo, Langella, after consulting for the fourth time with his attorney, asked whether the question was based on electronic surveillance and requested that he be taken before a judge. His request was denied. Upon his continuing to be recalcitrant and to request that he be taken before a judge, he was excused by the grand jury. But the two questions for which Langella was held in contempt were asked earlier in the grand jury proceedings (A. 49, 61, 65, 69-70, 71, 75-77). Although he had already consulted three times with his attorney, Langella never told the grand jury that his refusal to answer these two questions was based on his claim that they were the product of an illegal electronic surveillance.
The hearing here occurred before Einhorn, which would today govern the procedure in the New York courts in a similar case. Justice Sandifer's denial of Langella's pre-appearance motion, on the prosecutor's assurance of the existence of a court order for the electronic surveillance, essentially meets the requirements of Einhorn and constitutes a sufficient accommodation of the needs of the grand jury with those of the witness. Gelbard v. United States, 408 U.S. 41, 70, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972) (White, J., concurring). Moreover, Langella failed thereafter to make a timely request for further determination as to the source of the two questions which were the subject of the contempt indictment. The court had been informed that the surveillance was pursuant to court order and denied the motion. Later Langella refused to answer the question on which the indictment for contempt was based, until he could see his lawyer. After consulting his lawyer, he persisted in evading answers, but not on any claim the questions were based on illegal surveillance. Later, after being asked about one Gorgone, a/k/a Black, he asked to see a judge to determine whether that question arose from illegal surveillance. Here there was a sufficient compliance with the requirements of Einhorn on the earlier motion, and nothing new was raised before the grand jury to require a new hearing as to the source of the particular questions the witness refused to answer, which refusal was the basis of the contempt conviction.
Langella claims that his indictment by the same grand jury that heard his immunized testimony violates the fifth amendment. He argues that Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), puts the burden on the government to show that the immunized testimony was not the basis of the subsequent indictment and that it is impossible to meet this burden when the grand jury which hears his truthful but highly prejudicial answers to some of its questions*fn7 also indicts for contempt. His proposed solution is to have a different grand jury examine the transcript of his testimony, with all the truthful answers being redacted.
One problem with this proposed solution is that in deciding on a charge of criminal contempt, the second grand jury would also want to know the extent of his answers to questions. To be guilty of contempt under New York Penal Law § 215.51 a "witness need not flatly refuse to answer the questions put to him; false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt." People v. Ianniello, 36 N.Y.2d 137, 142, 365 N.Y.S.2d 821, 325 N.E.2d 146 (1975).
In United States v. Camporeale, 515 F.2d 184, 189 (2d Cir. 1975), we affirmed "the settled practice of permitting the same grand jury which heard the witness to file an indictment charging him with perjury. Having had the opportunity to observe his demeanor on the stand, it was in a superior position to determine whether there were reasonable grounds to believe that he was deliberately giving false [immunized] testimony. The grand jury's knowledge of a witness' prior criminal record, furthermore, should not preclude its filing the indictment, which merely represents a charge." We think similar considerations warrant having the same grand jury return the indictment for criminal contempt,*fn8 especially where, as here, the charged contempt involved refusal to answer, not any crime revealed in the immunized answers.