The opinion of the court was delivered by: LASKER
Pedro Archuleta was summoned to appear before a grand jury in this district on April 4, 1977. Prior to his appearance date he moved to quash the subpoena on various grounds. Oral argument on the motion to quash was held April 22, 1977, at which time Assistant United States Attorney Thomas Engel stated:
"I want to put the movants on notice at this time that if they have evidence of illegal electronic surveillance, they ought to bring it forward and they would not [sic] be dilatory in their motions and if they have evidence, it had better be from this date forward and not from here all the way back to 1974." (Tr. at 24).
On May 4, 1977 Archuleta, though "previously under the impression that a claim of illegal electronic surveillance in the grand jury context would be raised when, and if, certain questions were posed which Movant had reason to believe were based on information derived from illegal electronic surveillance,"
moved to quash the subpoena itself on the ground that it resulted from information gathered by illegal electronic surveillance. The original motion to quash was denied in a memorandum opinion responded at 432 F. Supp. 583 (1977), which did not address the claim of illegal surveillance. Familiarity with the earlier memorandum is assumed.
The government has responded with three arguments: (1) Archuleta has failed to make a colorable showing of illegal electronic surveillance and accordingly no governmental response is required; (2) Archuleta is not entitled to litigate questions of illegal electronic surveillance until and unless the government moves to hold him in contempt; and (3) in any event, the affidavits filed by A.U.S.A. Engel and several F.B.I. agents meet the government's burden of affirming or, as in this case, denying use or knowledge of any electronic surveillance, legal or illegal, by those in charge of this investigation.
The first argument must be rejected. Movant's affidavits, which at this stage of the proceedings the government agrees must be taken as true, establish the following. For a year and a half prior to being subpoenaed to Chicago in November, 1976, Archuleta "heard strange sounds on the telephone... and also an echoing sound, and my attorneys and other people have made the same complaint to me." In an affidavit filed before the court in Chicago and incorporated in the moving papers here, Joan Friedland, one of Archuleta's attorneys, stated that since her representation of Archuleta began on November 23, 1976, she has heard "strange clicks and beeps" in her phone conversations with lawyers and other persons "connected with representing" Archuleta on both her home and office phones. In addition, she stated that "there is often a hollow, echoing sound from my telephone [which has] worsened during the time since November 23, 1976." Archuleta's supplemental affidavit swears that during the summer of 1976 a business associate gave him a phone number in Colorado at which he could be reached, and that Archuleta telephoned him at this number three times in October, 1976. In early 1977, Archuleta learned that one Mary Lujan, whose home he had telephoned to speak with his associate, had been questioned by the F.B.I. regarding her knowledge of Pedro Archuleta and the phone calls which he made to the telephone in her house. Archuleta's affidavit goes on to state that he had not spoken to any other persons concerning his phone calls to that telephone number, and his belief that the F.B.I. could have obtained the information only through use of illegal electronic surveillance. Mary Lujan, a teacher of handicapped children in Del Norte, Colorado, filed an affidavit supporting the recital of Archuleta's supplemental affidavit.
On June 2, 1977 additional affidavits in support of Archuleta's motion were filed by two of his attorneys. Joan Friedland's supplemental affidavit states that since March 29, 1977 (the date on which this grand jury subpoena was issued) she has had numerous difficulties with phone calls made in connection with her representation of Archuleta, to wit, the sound of persons picking up the phone and hanging up even though the party called subsequently stated that they had not done so; high-pitched sounds on the line resembling the noise of a tape recorder running at high speed; continued echoes, clicks and unknown voices in the background of her calls. The affidavit of Doris Peterson, a staff attorney at the Center for Constitutional Rights in New York City involved in representing Archuleta in connection with the instant grand jury proceedings, states that:
"3. On April 16, 1977 I flew to Albuquerque New Mexico to consult with Mr. Archuleta in connection with his grand jury case. When I arrived in Albuquerque on April 15, 1977 [sic] I rented a car and traveled in it with Jose A. Lugo, another CCR staff attorney to see our client at his home in Tierra Amarillo, New Mexico.
4. As we were late for out appointment, we stopped at a roadside telephone on the outskirts of Santa Fe, New Mexico, to telephone Mr. Archuleta to tell him that we would be late.
5. I called Mr. Archuleta at La Cooperacion where he works, area code (505) 588-7601 and charged the number to my CCR credit card.
6. I heard men's voices talking and heard someone say, "Pedro has left" before I even said "hello."
7. I kept saying, "hello," "hello," "hello."
8. There was no answer and when it became clear that no one had answered the phone, I got the operator, explained my difficulty and ...