Appeal from a judgment convicting appellant of criminal contempt, 18 U.S.C. § 401(3), after a jury trial before Charles E. Stewart, Judge, of the Southern District of New York, for refusal to obey court orders directing him to answer questions before a grand jury investigating possible violations of federal gambling laws.
Smith, Mansfield and Oakes, Circuit Judges.
MANSFIELD, Circuit Judge:
Appellant Louis Morales was convicted of criminal contempt, 18 U.S.C. § 401(3), after a jury trial before Judge Charles E. Stewart in the Southern District of New York and was sentenced to six months in prison. Specifically, Morales refused to obey court orders directing him to answer questions before a grand jury investigating possible violations of federal gambling laws. On appeal, he argues (1) that the grand jury before which he refused to testify lacked the power to initiate a prosecution against him without having had the matter referred to it by a district judge; (2) that he was denied an adequate opportunity to contest the legality of electronic surveillance that he alleges was the source of the questions he refused to answer; (3) that his sentence for criminal contempt, imposed after he had already been committed civilly to coerce compliance with the orders to testify, constituted double jeopardy or a denial of due process; and (4) that certain supposed errors committed by his lawyer deprived him of the effective assistance of counsel. We affirm the conviction.
Morales was subpoenaed in early 1977 to testify before a grand jury investigating possible violations of federal statutes prohibiting syndicated gambling. On March 24, Judge Wyatt granted him "use immunity," 18 U.S.C. § 6002, and ordered him to "give testimony which he refused to give on the basis of his privilege against self-incrimination." Shortly thereafter, Morales appeared before the grand jury and listened to an explanation of the implications of Judge Wyatt's order, but he declined to testify, this time on the ground that the Government had engaged in allegedly unlawful electronic surveillance of him. Pursuant to the procedure we outlined 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), the Government submitted to Judge Lasker for his consideration in camera an order by Judge Motley authorizing certain electronic surveillance and supporting affidavits. On April 22, Judge Lasker ruled that this material established the facial validity of the wiretap of which Morales complained and ordered him to testify, warning him at that time that he would be held in contempt if he continued to refuse. No appeal was taken from Judge Lasker's decision.
On April 28, Morales was again brought before the grand jury. The orders of Judges Wyatt and Lasker were called to his attention, and he stated that he understood the obligations those orders created and the availability of sanctions for contempt. Nevertheless, he continued to refuse to testify, repeatedly asserting his privilege against self-incrimination. In a civil contempt proceeding directed by Judge MacMahon later that afternoon, Morales listened to yet another explanation of his duty to answer and admitted that his refusal to do so was intentional and knowing. Judge MacMahon thereupon found Morales to be in contempt of court and ordered him committed until he agreed to testify.
The commitment resulting from Judge MacMahon's civil contempt proceeding was short-lived; Morales was released by order of Judge Knapp after only a few days. On May 3, he made another appearance before the grand jury. When he persisted in his refusal to answer questions he was indicted by that grand jury for criminal contempt.
Morales' jury trial, held on July 11 and 12, was a simple one; the Government read into the record transcripts of Morales' refusal to testify on April 28 and of his admission to Judge MacMahon that the refusal was willful and then rested. No defense witnesses were called.
Grand Jury's Power to Indict for Criminal Contempt
Morales' contention that criminal contempt may not be prosecuted by indictment unless a judge first refers the matter of the alleged act of contempt to the grand jury lacks merit. Many cases have tacitly or explicitly recognized the power of grand juries to hand down indictments charging criminal contempt. E.g., United States v. DeSimone, 267 F.2d 741, 743-44 (2d Cir.), vacated as moot, 361 U.S. 125, 80 S. Ct 253, 4 L. Ed. 2d 167 (1959) (grand jury presentment); Steinert v. United States District Court, 543 F.2d 69, 70-71 (9th Cir. 1976); United States v. Mensik, 440 F.2d 1232 (4th Cir. 1971) (per curiam); United States v. Sternman, 415 F.2d 1165 (6th Cir. 1969), cert. denied, 397 U.S. 907, 25 L. Ed. 2d 88, 90 S. Ct. 903 (1970); United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976); United States v. Bukowski, 435 F.2d 1094, 1103 (7th Cir. 1970), cert. denied, 401 U.S. 911, 27 L. Ed. 2d 809, 91 S. Ct. 874 (1971).*fn1
Reversal would not therefore be warranted unless Morales could demonstrate that his indictment prejudiced him - for example, by failing to accord him the notice or other rights provided by Rule 42, F.R.Civ.P.,*fn2 see DeSimone, supra, 267 F.2d at 743-44; Mensik, supra, 440 F.2d at 1234. Here no such showing has been made. Morales does not claim that the indictment deprived him of notice or any of the other rights provided by Rule 42(b). The record and the jury's verdict belie his suggestion that the prosecutor's decision to seek an indictment was vindictive or arbitrary. Nor can he complain of the fact that he was indicted by the grand jury that witnessed his refusals to testify. We have recently reaffirmed the constitutionality of this practice, Langella v. Commissioner of Corrections, 545 F.2d 818, 822-23 (2d Cir. 1976), cert. denied, 430 U.S. 983, 97 S. Ct. 1679, 52 L. Ed. 2d 377 (1977), recognizing that a grand jury that has observed a witness' demeanor on the stand is in "a superior position" to determine whether his non-immunized testimony should subject him to criminal liability. United States v. Camporeale, 515 F.2d 184, 189 (2d Cir. 1975).*fn3 In short, absent a showing of specific prejudice, we cannot presume that the grand jury here, an institution designed for the protection of an accused against official oppression, Ex parte Bain, 121 U.S. 1, 11, 30 L. Ed. 849, 7 S. Ct. 781 (1887); Toth v. Quarles, 350 U.S. 11, 16, 100 L. Ed. 8, 76 S. Ct. 1 (1955); Smith v. United States, 360 U.S. 1, 9, 3 L. Ed. 2d 1041, 79 S. Ct. 991 (1959); Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), deprived Morales of any substantial rights.
Morales also argues that to allow a grand jury to initiate prosecutions for criminal contempt sua sponte would interfere with the courts' exercise of their power to secure compliance with their orders and to vindicate their authority generally. See United States v. Leyva, 513 F.2d 774, 778-79 (5th Cir. 1975); In re Amalgamated Meat Cutters & Butcher Workmen, 402 F. Supp. 725, 736 (E.D. Wisc. 1975). Under the circumstances of this case, we disagree. The court below retained the exclusive power, which was exercised without success before the indictment was filed, to coerce the recalcitrant witness to testify, and the indictment in no way limited Judge Stewart's authority to sentence Morales as he saw fit. Having defied the court, Morales is hardly in a position to assert its interest in vindicating its authority.
Refusal to Furnish Grand Jury Witness With Documents Pertaining to Court-Authorized Electronic Surveillance
The substance of Morales' wiretapping claim is that Judge Stewart erred in refusing to require disclosure of the court order authorizing electronic surveillance of him and supporting affidavits.*fn4 Morales concedes, as he must, that Judge Lasker's in camera examination of these documents and resulting determination that the Government's wiretap was facially valid were a sufficient basis for finding him in civil contempt and committing him until he might agree to testify.*fn5 In re Persico, supra; In re Millow, 529 F.2d 770, 773 (2d Cir. 1976). Nevertheless, Morales contends that he became entitled to a more comprehensive inquiry into the legality of the Government's electronic surveillance when he was charged with criminal contempt, since, he argues, the danger that a full-blown suppression hearing would delay the grand jury's investigation, admittedly an important factor ...