Appeal by the United States of a judgment by the United States District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, dismissing informations filed against appellees for criminal contempt in violation of Title 18 U.S.C. § 401 for refusing to testify in a criminal trial after being granted use immunity, on the ground that the government's response to appellees' claims of illegal electronic surveillance pursuant to Title 18 U.S.C. § 3504 was inadequate. The government contends that its response was sufficient under the circumstances. Appellees cross-appeal on the grounds that their refusal to testify was justified under the Fifth Amendment because of their fear of being prosecuted by the Japanese government. Reversed and remanded.
Kaufman, Chief Judge, Mansfield and Van Graafeiland, Circuit Judges.
MANSFIELD, Circuit Judge:
This appeal concerns the timeliness of claims by witnesses under 18 U.S.C. § 3504*fn1 that their examination was to be based upon the products of unlawful surveillance and the scope of the government's duty under that statute to "affirm or deny" the existence of illegal wiretapping in response to requests first made on the day the witnesses were required by subpoena to appear and testify in a criminal trial. We hold that under the circumstances of this case their requests were untimely and that in any event the affidavit of an Assistant United States Attorney based on his own knowledge and on representations by the chief investigative unit involved in the case and a statement by the Assistant United States Attorney conducting the examination were sufficient to satisfy § 3504. Accordingly, we reverse the dismissal of the contempt informations filed against the witnesses.
This controversy arose when appellees Michael Yanagita and Marc Kondo were subpoenaed by the government to testify at the trial of Kenneth Chin and Elizabeth Young, who were charged with a series of federal firearms violations after the government seized a cache of weapons at their apartment in October, 1975. One of the weapons, a rifle, was traced to a firearms dealer in California, whose records showed that it had been purchased by Kondo. Documents filed at the New York City Firearms Control Board indicated that two other seized weapons were purchased by Kenneth Chin from Yanagita. The government sought appellees' testimony in order to establish the means by which these weapons were transferred to Chin and Young.
Yanagita was first subpoenaed to testify at the April, 1976, trial of Young. He appeared but refused to take the witness stand, invoking his privilege against self-incrimination. He asserted the possibility of a criminal prosecution against him by Japan, since one theory of the government's case was that Chin and Young had plotted the assassination of the Emperor of Japan who was visiting the United States at the time the weapons were seized. Pursuant to a stipulation, an out-of-court statement was admitted at the trial in lieu of Yanagita's testimony. However, he was subpoenaed to appear at the June 21, 1976, trial of a superseding indictment filed against Chin and Young after the earlier trial of Young ended in her acquittal on one count and a mistrial on the other.
Appellee Kondo was subpoenaed on May 18, 1976, to testify on June 21. His counsel arranged with the government for Kondo to be flown to New York from California on Thursday night, June 17. On Friday, June 18, Kondo met with his attorney and disclosed facts which led his attorney to file on Kondo's behalf a motion pursuant to § 3504 on the opening day of trial. In an affidavit, Kondo alleged difficulties with his telephone service during the summer of 1975 and claimed that he had seen, in November 1975, certain information in a government file which could have come only from a telephone conversation he had had with Elizabeth Young. Kondo's attorney then met with Yanagita, also his client, on June 20, 1976, and a similar motion was filed on his behalf on June 21. Yanagita's affidavit similarly alleged continuing telephone difficulties and that at least one of the telephone conversations during the period of difficulty was "relevant" to the indictment against Chin and Young.
On June 21 counsel for Yanagita and Kondo appeared before the trial judge, Chief Judge Jacob Mishler, and requested that the government determine whether illegal surveillance had been used against Yanagita and Kondo. Judge Mishler initially found the request untimely and made in bad faith and ordered the defendants to testify.
When the trial began, Yanagita was called by the government and refused to testify, asserting his Fifth Amendment privilege. In response, the government immediately granted him immunity under 18 U.S.C. §§ 6002 and 6003, and the court ruled that his fear of Japanese prosecution was insufficient to support his refusal to testify. When Yanagita renewed his surveillance request and continued to refuse to testify, Judge Mishler suspended the trial for several hours in order to allow the government to reply. When court resumed that afternoon, the government stated that an "all-agency" surveillance check would take a minimum of several weeks time and disrupt the trial, but it offered an affidavit to the effect that the principal agency involved in the investigation of the firearms violations, the Bureau of Alcohol, Tobacco and Firearms, had been contacted orally and had denied the existence of any wiretapping of the telephones of either Yanagita or Kondo. In addition, the Assistant United States Attorney in charge of the case swore that he had no knowledge of any illegal surveillance in the investigation.
Yanagita and Kondo refused to accept the affidavit based upon oral representations and requested written agency checks from ATF as well as from the FBI and the Secret Service, which also had been involved in some parts of the investigation. Judge Mishler ruled that the government's responses were sufficient under the circumstances and refused to further delay the trial. When Yanagita and Kondo were called to testify, each declined to do so. They were held in contempt of the district court and when each refused the opportunity to purge himself the following day, they were jailed for the duration of the trial, but not in excess of 30 days. Two days later the jury returned a guilty verdict against Chin and Young on two counts of their indictment, but acquitted them on four counts regarding the acquisition of weapons from Yanagita and Kondo.
On June 24, 1976, appellees were charged with criminal contempt under 18 U.S.C. § 401 for refusing to obey the court's order to testify, and the case was assigned to Judge John F. Dooling, Jr. On August 17, 1976, Judge Dooling, in a written opinion reported at 418 F. Supp. 214, denied appellees' Fifth Amendment claims but dismissed the contempt informations against them on the ground that the orders to testify were based upon insufficient assurances by the government that illicit surveillance had not been employed. The government took this appeal from Judge Dooling's order.
In Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972), the Supreme Court held that as a defense to a contempt charge a grand jury witness may assert that his testimony would have been inadmissible in the original proceeding under 28 U.S.C. § 2515, which provides 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 ...