The opinion of the court was delivered by: OWEN
Andres, Julio, and Luis Rosado move for (I) an order vacating my order of August 22, 1977 holding them in civil contempt pursuant to 28 U.S.C. § 1826, (II) an order directing the government to respond to the Rosados' allegations of illegal electronic surveillance and for a hearing on their claims of illegal electronic surveillance, (III) an order directing that pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, they be furnished the transcribed minutes of the contempt and related proceedings, and (IV) a protective order barring use by the government of the Rosados' signatures on CJA affidavits appended to the order to show cause.
(I) This proceeding commenced before me on August 16, 1977 when attorney William Kunstler appeared before me in the robing room of Part I to obtain an adjournment of certain grand jury subpoenas addressed to the Rosado brothers. While the Rosado brothers had been represented by attorney Jesse Berman in connection with federal inquiries into bombings attributed to the FALN, Mr. Kunstler informed me that Mr. Berman was on a camping trip in Guatamala and could not be reached. Mr. Kunstler also informed me (and this representation has never been denied by him or any of the Rosados) that:
"They [the Rosado brothers] asked me to represent them until Jesse Berman came back, which would be about the 26th or 28th of August. I told them I would represent them."
The Assistant United States Attorney opposed the adjournment, stating that the matters sought by the grand jury were clearly not testimonial,
were not privileged,
and there was no need for delay. Mr. Kunstler then stated that the Rosados would not cooperate with the grand jury, but merely wished time to formulate and interpose legal objections to performance. In this regard, he stated:
"Mr. Kunstler: . . . I think Mr. Marmaro knows, because he told me that he had been informed, that they [the Rosado brothers] are not going to cooperate, so it is going to be a legal issue.
"Mr. Marmaro: And I have told Mr. Kunstler that the Government would move to hold them in contempt.
"Mr. Kunstler: Oh, there will be a contempt hearing. If it goes all the way there may be incarceration. But we want a fighting chance."
The Rosados were thereupon given a six day adjournment.
On the morning of August 22, the adjourned day, Mr. Kunstler appeared together with the Rosados. He announced that he now represented only Andres, and that Julio and Luis were appearing pro se. A memorandum of law was submitted subscribed by Mr. Kunstler as attorney for Andres, and by Julio and Luis, each pro se. Legal argument was heard from all three. The legal objections were overruled and the witnesses directed to comply with the subpoenas before the grand jury. They refused, and the court ordered them to comply. The witnesses returned to the grand jury and again refused. Late in the afternoon of August 22, when the court found them in contempt and proposed to rule, for the first time Julio and Luis requested an adjournment until their attorney would return from his vacation. I regarded this request for counsel at that time as frivolous and so regard it now. While there is no question that a witness embroiled in a contempt situation before a grand jury is entitled to counsel, In re Di Bella, 518 F.2d 955, 959 (2d Cir. 1975), the present contention of Julio and Luis Rosado that they were forced to proceed in the absence of counsel of their choice and were entitled to explicit instructions from the court outlining their right to counsel and the dangers of proceeding pro se is, on this record, wholly without merit. See United States v. Rosenthal, 470 F.2d 837, 844-45 (2d Cir. 1972), cert. denied, 412 U.S. 909, 93 S. Ct. 2298, 36 L. Ed. 2d 975 (1973). Andres and Julio Rosado had had Mr. Berman as their lawyer in connection with the various FALN inquiries since March and May 1976, respectively, and Luis has been represented by Mr. Berman in those matters since January 1977. In his absence, they engaged William Kunstler on August 15 to represent all three of them. As of August 15, they were therefore fully aware of their right to counsel, the benefits of counsel, and, indeed, they all had counsel. For whatever tactical reason, somewhere in the period August 16 to August 22, two of the Rosados decided not to have Mr. Kunstler appear for them as an attorney of record, although submitting joint papers with him. Mr. Kunstler, one notes, a number of times during the day of August 22 even appeared to be speaking on behalf of all three brothers,
and since all three were obviously united in interest, Mr. Kunstler, speaking for one, was, as a practical matter, speaking for all three.
Were one to speculate on what was really going on here, a clear background is provided by Mr. Kunstler's statements to me on our first meeting on August 16. On that day, he stated that (1) the Rosados were not going to cooperate, (2) they wished to make legal arguments, and (3) he recognized that on the adjourned date there might even thereafter be incarceration, "if it goes all the way . . .."
It is reasonably clear that the Rosados did not anticipate the speed with which events moved on August 22. They perhaps expected more drawn-out proceedings as had occurred with regard to Pedro Archuleta, another witness in the same inquiry. See In re Archuleta, 561 F.2d 1059 (2d Cir. 1977). Thus, having relinquished Mr. Kunstler as counsel on the morning of August 22, they found themselves at the end of the day, after their hearing on the legal issues, facing possible incarceration which they had thought might come some time in the future. Only then did they suddenly raise the question of counsel to obtain a delay of what was squarely before them. Having had Mr. Kunstler as counsel of record until that morning, and having relinquished him for reasons best known to themselves,
such a tactical reversal -- to demand counsel -- for the apparent purpose of delay cannot be countenanced.
(II) The Rosados allege "eight factors" supporting their claim of illegal electronic surveillance. According to my notes on oral argument they are:
(1) Evidence produced at a Chicago hearing that a telephone, number (312) 235-2801, belonging to Jose Lopez, one of the witnesses subpoenaed there in connection with an FALN ...