Petition — Canon v. United States

, Supreme Court, U. S “,

& FILED

FEB 10 1976

_

| MICHA! RODAK, !R., CLERK

ee eee a —_

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1975

No. 75-1132

MICHAEL IRVIN CANON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS G. CROSBY, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorney for Petitioner

Washington. 0. C e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393.0625

(i)

TABLE OF CONTENTS

Page

og ke ol ke ke Wee 6 bad oe a ol I

Og os oo 046 WON OES ROSE OSE ESAS 2

QUESTIONS PRESENTED FOR REVIEW ............-. 2

STATUTORY PROVISIONS INVOLVED ..............

STATERGENT GP THRE CABS on ccc ccc ccasescsvecces 5

REASONS FOR GRANTING THE WRIT .............. 8

I. THE DISTRICT COURT SHOULD HAVE

GRANTED CANON’S MOTION FOR A

PROTECTIVE ORDER PRIOR TO ORDER-

ING CANON TO TESTIFY .........2-eeeeees 8

Il. THE DISTRICT COURT SHOULD HAVE

INSTRUCTED THE GOVERNMENT TO

COMPLY WITH TITLE 18 U.S.C. § 3504

AND GIVEN PETITIONER AN OPPOR-

TUNITY TO FACIAITLY CHALLENGE

ANY ELECTRONIC SURVEILLANCE .......... 1]

Ill. THE COURT OF APPEALS SHOULD

HAVE REMANDED THE CASE TO THE

DISTRICT COURT FOR RECONSIDERA-

TION IN LIGHT OF THE GOVERN-

MENT’S UNTIMELY AFFIDAVIT PUR-

SUANT TO TITLE 18 U.S.C. §3504 ........... 14

RRA RE Cn ce ae eee eee ieatmm a: Fre wrens e 15

I Oe I 5 i ov es no ks canes 16

WR ok bio eis a a Ns ee el la

TABLE OF AUTHORITIES

Cases:

Bruton v. United States, 391 U.S. 123, 88 S.Ct.

5620. 3D L.BA26 SIG CIDER) 2 cc cece cece eeeens 10

Droback v. United States, 509 F.2d 625 (9th Cir.,

1974): cert. denied, 95 S.Ct. 1952 .........068.- 12,13

(ii)

Page

Gelbard v. United States, 408 U.S. 41 (1972) ........... 1]

Goldberg v. Kelly, 397 U.S. 254 (1970) ............... 13

Goldberg v. United States, 472 F.2d 513, 516 n.5

DE: lipemia ee ee tase re 9

In re Lochiatto, 497 F.2d 803 (1974) ............. 12,14

In re Quinn, 525 F.2d 222 (Ist Cir.. 1975) ............ 14

In re Weir, 377 F.Supp. 919, 520 F.2d 662 (9th

ED. Sls wes od ae Sek a ew ean ee ck oe he 9,10

In the Matter of Persico, 491 F.2d 1156 (1974) ...... 12,14

Kastigar v. United States, 406 U.S. 441 (1972) ....... 8,9,10

Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct.

ogee GR fe FS: 10

United States v. Alter, 482 F.2d 1016 (9th Cir.,

cn, SE EES CPT OO OT Pe rr nen 13

United States v. Bellosi, 501 F.2d 833 (D.C. Cir..

P< t0e eed eee e SCG ks bASS OO ORE ea eek 15

United States v. Dinsio, supra, 468 F.2d at 1394 ......... 13

Constitution of the United States:

II coo a aa oe ea ito Las 6

Miscellaneous:

Standards for Exclusion in Immunity Cases after

Kastigar and Zicarelli, 82 Yale L.J.171 (1972) ....... 9

Statutes:

Pee OU a lay ewan ee weeks 13

RP ra Sens ta rai re OE 4

AY, Seeman omer | km

I Sra ac fat rite een ce BL Na ne 3

I ok oc ous ewok sae cae 14

IE dn ea le ie ee Le eee 2,4.7,11,14

Ee re On hes eae te Oe 4.8

Se EE 535 ci veo he a eae ea 2

IN THE

Supreme Court of the Cinited States

OCTOBER TERM, 1975

No.

MICHAEL IRVIN CANON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COUPT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner MICHAEL IRVIN CANON respectfully

prays that a Writ of Certiorari issue to review the

memorandum order of the United States Court of

Appeals for the Ninth Circuit entered in this proceeding

on January 12, 1976.

OPINION BELOW

The memorandum order of the United States Court

of Appeals for the Ninth Circuit was filed n January

i2, 1976. This memorandum and order has not been

reported and is reproduced herein as Appendix “A”.

5

JURISDICTION

The memorandum order of the United States Court

of Appeals for the Ninth Circuit, entered on January

12, 1976, directed that no petition for rehearing may

be filed,’ and directed the mandate issue twenty-one

(21) days from January 12, 1976. On January 26, 1976

a timely motion to stay the issuance of the mandate

was filed in the United States Court of Appeals for the

Ninth Circuit and said motion was granted providing a

petition for writ of certiorari is filed by February 11,

1976. This Court’s jurisidiction is invoked under 28

U.S.C. §$ 1254(1).

QUESTIONS PRESENTED FOR REVIEW

|. Whether the District Court should have granted

CANON’S motion for a protective order prior to

—— CANON to testify.

. Whether the District Court should have instructed

the Gassseiini to comply with Title 18 U.S.C. $ 3504

and given CANON an Opportunity to facially challenge

any electronic surveillance.

3. Whether the Court of Appeals should have

remanded the case to the District Court for reconsidera-

tion in light of the Gevernment’s untimely affidavit

pursuant to Title 18 U.S.C. § 3504.

STATUTORY PROVISIONS INVOLVED

‘ me :

18 U.S.C. § 2515. Prohibition of use as evidence of

intercepted wire or oral communications.

ee

i .

Appendix, pages la-2a.

3

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 any trial, hearing,

or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the

United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.

18 U.S.C. § 2518. Procedure for interception of wire

or oral communications.

(1) Each application for an order authorizing or

approving the interception of a wire or oral

communication shall be made in writing upon oath

or affirmation to a judge of competent jurisdiction

and shall state the applicant’s authority to make

such application. Each application shall include the

following information:

(a) the identity of the investigative or law

enforcement officer making the application, and

the officer authorizing the application;

(b) a full and complete statement of the facts

and circumstances relied upon by the applicant, to

justify his belief that an order should be issued,

including (i) details as to the particular offense

that has been, is being, or is about to be

committed, (ii) a particular description of the

nature and location of the facilities from which or

the place where the communication is to be

intercepted, (iii) a particular description of the

type of communications sought to be intercepted,

(iv) the identity of the person, if known,

committing the offense and whose communications

are to be intercepted:

* * *

(ec) a full and complete statement of the facts

concerning all previous applications known to the

4

individual authorizing and making the application,

made to any judge for authorization to intercept,

or for approval of interceptions of, wire or oral

communications involving any of the same persons,

facilities or places specified in the application, and

the action taken by the judge on each such

application: and

* aK *

18 U.S.C. § 3504. Litigation concerning sources of

evidence.

(a) In any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer,

agency, regulatory body, or other authority of the

United States—

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the primary

product of an unlawful act or because it was

obtained by the exploitation of an unlawful act,

the opponent of the claim shall affirm or deny the

occurrence of the alleged unlawful act:

* * *

(b) As used in this section “unlawful act”

means any act the use of any _ electronic,

mechanical, or other device (as defined in section

2510(5) of this title) in violation of the

Constitution or laws of the United States or any

regulation or standard promulgated pursuant

thereto.

18 U.S.C. § 6002. Immunity generally.

Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or

provide other information in a proceeding before

or ancillary to—

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint committee

of the two Houses. or a committee or a

5

subcommittee of either House, and the person

presiding over the proceeding communicates to the

witness an order issued under this part, the witness

may not refuse to comply with the order on the

basis of his privilege against self-incrimination; but

no testimony or other information compelled

under the order (or any information directly or

indirectly derived from such testimony or other

information) may be used against the witness in

any criminal case, except a prosecution for

perjury, giving a false statement, or otherwise

failing to comply with the order.

STATEMENT OF THE CASE

On November 7, 1975, Petitioner was served with a

subpoena directing him to appear and testify before a

Federal Grand Jury sitting in the District of Nevada at

Las Vegas, Nevada. The subpoena directed Petitioner to

appear on November 13, 1975; however, with consent

of the Government attorney Petitioner’s appearance was

postponed until November 20, 1975.

Petitioner appeared before the Grand Jury on

November 20, 1975, gave his name and declined to

answer further questions, asserting his privilege against

self-incrimination. Petitioner was then excused and

directed to return on November 26, 1975.

On November 26, 1975, Petitioner returned to the

Grand Jury and again declined to answer questions for

the same reasons. That same day, Petitioner was served

with an Order of Immunity signed by the Honorable

ROGER D. FOLEY, District Judge (R.Vol.l. pp.

10-11). Petitioner was then directed to return to the

Grand Jury on December 4, 1975.

6

The Government filed on November 28, 1975, a

motion requesting the Court to direct Petitioner to

answer questions and a notice of intent to seek a

contempt order should he still decline to answer

(R.Vol.I. pp. 12-15).

Prior to Petitioner reappearing before the Grand Jury

‘he filed a motion for protective order (R.Vol.1. pp.

22-26) and 2 memorandum in opposition to a contempt

hearing (R.Vol.1. pp. 17-21).

Petitioner again, on December 4, 1975, declined to

answer questions, responding instead as follows:

“I will respectfully to [sic] refuse to answer on

the grounds of the Fifth Amendment even though

an immunity order has been entered, and the

immunity order does not conform to the applica-

tion of immunity, and that the Court has not

ruled on my motion for protective order, and

these questions resulted from unlawfu! electronic

surveillance.” (R.Vol.II. p. 10).

The above answer was read to Judge FOLEY by the

Grand Jury stenographer at a hearing on the Govern-

ment’s application for a contempt order. At that

hearing, Judge FOLEY considered the arguments of

counsel relative to Petitioner's motion for a protective

order. The motion was taken under submission

(R.VoLII. p. 49) and the matter was recessed until

December 5, 1975.

On December 5, 1975, Petitioner’s motion for a

protective order was denied in its entirety (R.Vol.II. p.

51) and Petitioner was directed to return to the Grand

Jury (R.VolII. p. 52). Petitioner again declined to

answer questions before the Grand Jury and he was

then returned to Court at which time CANON was held

in contempt.

7

During the contempt hearing on December 5, 1975,

CANON again raised a claim pursuant to Title 18

U.S.C. §3504 and requested the Government be

directed to comply with that Section (R.Vol.II. p. 79).

This request was denied.

CANON’S notice of appeal was filed December 12,

1975 (R.Vol.I. p. 52). .

Subsequent to December 12, 1975, the Govern-

ment ex-parte filed on December 19, 1975 an affidavit

entitled “Affidavit of RICHARD A. WRIGHT, Assistant

United States Attorney, In Accordance With Title 18,

United States Code, Section 3504.” (R.Vol.l. pp.

61-67). That affidavit alleges a series of court

authorized wiretaps in which CANON was intercepted.

It appears from that affidavit that Petitioner was named

as a subject in two of the four authorization orders,

those being November 22, 1974, in the Northern

District of Alabama, and October 24, 1975, in the

District of Nevada; the latter being a source of

information upon which the questions asked of

Petitioner before the Grand Jury were based.

Petitioner argued before the United States Court of

Appeals for the Ninth Circuit that the “affidavit” be

stricken from the record on appeal since it was not

timely filed in the District Court and that the matter

should be remanded to the District Court for

reconsideration in light of the “affidavit” which was

not before the District Court when Petitioner was held

in contempt. The Court of Appeals declined to do so.

8

REASONS FOR GRANTING THE WRIT

I.

THE DISTRICT COURT SHOULD HAVE

GRANTED CANON’S MOTION FOR A

PROTECTIVE ORDER PRIOR TO ORDER-

ING CANON TO TESTIFY.

Subsequent to the Order of Immunity which was

entered on November 26, 1975, Petitioner filed a

motion for protective order which requested, inter alia:

“That the Government be required to certify to

this Court in writing a detailed outline of any

incriminating evidence against Michael Irvin Canon

which the Government has in its possession prior

to this Court’s compelling Canon to testify: it is

suggested that the Court seal the certification of

evidence subject to further order of the Court.”

(R.VolL.1. p. 22).

Title 18 U.S.C. § 6002 states that “no testimony or

Other information compelled under the order (or any

information directly or indirectly derived from such

testimony) may be used against the witness in any

criminal case.’ In Kastigar vy. United States, 406 U.S.

441 (1972) the Supreme Court held that once an

indicted witness shows that he or she has been

compelled to testify under a grant of immunity, the

Government bears the burden of proving that its

evidence is not tainted by establishing an entirely

independent and legitimate basis for it.

Despite the fact that the Kastigar Court termed the

imposition of such a burden “very substantial protec-

tion’, 406 U.S. at 461, it is submitted that the

precautionary step of certification of evidence by the

9

Government be taken to insure that any immunized and

compelled testimony of a witness will in no way

contribute to a criminal prosecution against him.

If this precautionary measure is not taken, the proof

problems surrounding subsequent use of immunized

testimony may be very great. The concern that

impermissible use of immunized testimony may not be

uncovered was clear in both the majority and dissenting

opinions in Aastigar, supra.

The prohibition on subsequent use of immunized

testimony should not be limited to evidence introduced

at trial. Kastigar, supra, forbids the use of compelled

testimony “in any respect”. 406 U.S. at 453. The

Kastigar Court specifically stated that “the use of

compelled testimony as an investigatory lead; and

also...the use of any evidence obtained by focusing

investigation On a witness as a result of his compelled

disclosures’ was barred. 406 U.S. at 460.

The precautionary step stated above was suggested in

“Standards for Exclusion in Immunity Cases after

Kastigar and Zicarelli’, 82 Yale L.J. 171 (1972) as one

means of insuring full protection of an immunized

witness. Such a procedure has been employed by at

least One district court in the Ninth Circuit when Judge

TURRENTINE ordered certification of evidence in

camera. In re Weir, 377 F.Supp. 919, 520 F.2d 662

(9th Cir., 1975). Additionally, the Second Circuit has

suggested that certification of evidence is an appropriate

means of protecting both the Government and a

defendant prior to the compulsion of testimony.

Goldberg vy. United States, 472 F.2d 513, 516 n.5

(1973).

Secondly, Petitioner in his motion tor protective

order sought an order prohibiting the Government trom

10

seeking an indictment against Petitioner from the same

Grand Jury he was ordered to give testimony to.

(R.Vol. I. p. 22). This request was also denied.

It is submitted that such a precaution is necessary for

the reason that once a Grand Jury hears incriminating

testimony from a witness, there is no way that the

Grand Jury can ignore it, that is, not “use” the witness’

testimony against him in a decision to indict the

witness.

Petitioner’s concern in this regard was discussed in

Goldberg v. United States, supra, wherein the Court

stated:

“We would be greatly troubled by what has

happened here if the Government were seeking an

indictment of Goldberg from the grand jury before

which he is being asked to testify. Although the

order to compel testimony might be valid, we

would have most serious doubt about the validity

of such an indictment. Despite any instructions

from the judge, it would be well nigh impossible

for the grand jurors to put Goldberg’s answers out

of their minds, cf. Bruton v. United States, 391

U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),

and testimony compelled by the order would thus

‘be used against the witness in [a] criminal case,”

cf. Kirby v. Illinois, 406 U.S. 682, 688-689, 92

S.Ct. 1877, 32 L.Ed.2d 411 (1972), in defiance

not only of 18 U.S.C. § 6002 but of the command

ot Kastigar that the immunity must be ‘coexten-

sive with the scope of the privilege.” 406 U.S. at

449. 92 S.Ct. at 1664. But the Government

represented to us in open court that the grand jury

before which Goldberg has been directed to answer

questions will not be asked to indict him.” 472

1]

prior to Petitioner's having to make the difficult

decision to testify or suffer the consequences which

have been imposed upon him.

THE DISTRICT COURT SHOULD HAVE

INSTRUCTED THE GOVERNMENT TO

COMPLY WITH TITLE 18 U.S.C. §3504

AND GIVEN PETITIONER AN OPPOR-

TUNITY TO FACIALLY CHALLENGE ANY

ELECTRONIC SURVEILLANCE.

Petitioner asserted a claim of unlawful electronic

surveillance in both his written objection to a contempt

hearing (R.Vol. I. p. 18) and orally during the

contempt hearing (R.Vol. II. p. 75). The District Court,

however, refused to direct the Government to respond

in compliance with Title 18 U.S.C. $3504 which

provides, inter alia: =

‘“(a) In any trial, hearing, or other proceeding in

or before any court, grand jury, department,

officer, agency, regulatory body, or other author-

ity of the United States--

(1) upon a claim by a party aggrieved that

evidence is inadmissible because it is the primary

product of an unlawful act or because it was

obtained by the exploitation of an unlawful act,

the opponent of the claim shall affirm or deny the

occurrence of the alleged unlawful act;...”

The prohibition of Title 18 U.S.C. § 2515 is available

to a subpoenaed and immunized grand jury witness in

7 ‘

F.2d at 516. defense of a contempt citation. Gelbard vy. United

Petitioner asserts that the safeguards discussed herein States, 408 U.S. 41 (1972).

should have been implemented by the District Court

12

The Court of Appeals for the First Circuit has ruled

that in order to give effect to the prohibition of Title

i8 U.S.C. §2515 in a court authorized wiretap

situation, a witness is entitled to an opportunity for

inspection of the following limited materials: the

authorization of the Attorney General or his designate,

the affidavits in support of the court order, the court

order, and an affidavit from the Government as to

length of time the surveillance was conducted. /n re

Lochiatto, 497 F.2d 803 (1974). The limited review

permitted by Lochiatto is not the type of “full-blown

suppression hearing” with which the Second Circuit

Court of Appeals was concerned about in /n the Matter

of Persico, 491 F.2d 1156 (1974).

The Government relied below on Droback v. United

States, 509 F.2d 625 (9th Cir., 1974); cert. denied, 95

S.Ct. 1952, wherein the Court held that an immunized

witness was not entitled to a “full-fledged suppression

hearing” to question the validity of a court ordered

wiretap. Unfortunately, the printed opinion does not

set forth the facts in Droback. However, a review of

Droback’s reply brief, filed in the Ninth Circuit points

out two distinguishing factors between that case and

the instant case. First, Droback, prior to his immuniza-

tion, had been dismissed by the Government from the

pending indictment, and secondly, Droback had already

lost his wiretap suppression motion in connection with

the indictment.

Finally, it should be pointed out that in Droback the

Court viewed the situation as one in which Droback

was “seeking to convert his contempt proceeding into a

bystander’s action to test the legality of a surveillance

program which is likely to produce evidence against one

or more of his associates.” 509 F.2d at 626. Such is

not the situation herein.

13

In the instant case, Petitioner was a target defendant

of the Grand Jury’s investigation (R.Vol. II. p. 10) and

unlike Droback, there has been no prior determination

of the legality of the wiretap.

It is respectfully submitted that Petitioner is entitled

to a review of the underlying wiretap materials.

Furthermore, adequate time to review said documents

and prepare a defense to a contempt citation is

mandated by the guarantee of due process as stated in

United States v. Alter, 482 F.2d 101¢ (9th Cir., 1973):

wherein the Court citing Goldberg v. Kelly, 397 US.

254 (1970), said:

“Moreover, the hearing Alter received was not the

‘uninhibited adversary hearing’ contemplated by

section 1826(a). (United States v. Dinsio, supra,

468 F.2d at 1394). The hearing was largely

confined to the perfunctory reception of affidavits,

a round of oral argument, and some ofters for the

record. That ‘uninhibited adversary hearing’ rec-

ognized by Harris and most recently reaffirmed by

Dinsio requires, at the very least, that a witness be

allowed to probe all nonfrivolous defenses to the

contempt charge. The constitutional guarantee of

due process of law means more than a silhouette

of justice; it requires that judicial determinations

affecting the freedom of the individual be openly

arrived at after full, fair. and vigorous debate on

both sides of all substantial issues. ‘The funda-

mental requisite of due process of law is the

opportunity to be heard’... The hearing must be

‘at. a meaningful time and in a_ meaningful

manner.’ 482 F.2d at 1024.

14

iil.

THE COURT OF APPEALS SHOULD HAVE

REMANDED THE CASE TO THE DISTRICT

COURT FOR RECONSIDERATION _ IN

LIGHT OF THE GOVERNMENT’S UN-

TIMELY AFFIDAVIT PURSUANT TO

TITLE 18 U.S.C. § 3504.

Notwithstanding the failure to do so in the District

Court prior to Petitioner being held in contempt, the

Government felt compelled to file an affidavit pursuant

to Title 18 U.S.C. § 3504, even though not timely.

Petitioner contends that the Court of Appeals should

have remanded the matter to the District Court for

reconsideration and at the very least, an in camera

facial review of the October 24, 1975 wiretap materials

in view of the Government’s statement that Petitioner

had in fact been the subject of a prior electronic

surveillance authorization order. /7 the Matter of

Persico, 491 F.2d 1156 (2nd Cir., 1974); In re Quinn,

§25 F.2d 222 (Ist Cir., 1975).

Without the opportunity to examine the limited

wiretap materials, Lochiatto, supra, or at least an in

camera review, Persico, supra, the restriction of Title 18

U.S.C. § 2515 has no meaning.

For example, in light of the Government’s untimely

disclosure that Petitioner was named in a prior order

authorizing electronic surveillance, did the application

submitted to Judge FOLEY, which resulted in his

authorization order of October 24, 1975, meet the

requirements of Title 18 U.S.C. $ 2518(1)(e)? That

Section requires that:

“(1) Each application for an order authorizing

or approving the interception of a wire or oral

1S

communication shall be made in writing upon oath

or affirmation to a judge of competent jurisdiction

and shall state the applicant’s authority to make

such application. Each application shall include the

following information:

* * *

(ec) a full and complete statement of the facts

concerning all previous applications known to the

individual authorizing and making the application,

made to any judge for authorization to intercept,

or for approval of interceptions of, wire or oral

communications involving any of the same persons,

facilities or places specified in the application, and

the action taken by the Judge on each such

application; ...”

If the Government failed to comply with this section

then the electronic surveillance conducted on Petitioner

pursuant to the order of October 24, 1975 was

“unlawful”. United States v. Bellosi, 501 F.2d 833

(D.C. Cir., 1974).

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

DOUGLAS G. CROSBY, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 8910!

Telephone: (702) 384-5563

Attorney for Petitioner

16

CERTIFICATE OF SERVICE

It is hereby certified that true and correct copies of

the above and foregoing Petition for a Writ of Certiorari

to the United States Court of Appeals for the Ninth

Circuit was mailed this 9th day of February, 1976,

postage prepaid, to the Honorable Robert Bork,

Solicitor General, United States Department of Justice,

Washington, D.C. 20530.

DOUGLAS G. CROSBY, ESQ.

la

APPENDIX A

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS.

FOR THE NINTH CIRCUIT

. : >

UNITED STATES OF AMERICA,

Plaintiff-Appellee, |

vs. No. 75-3811

}

Micuae. Irvin Canon, | :

. ); MEMORANDUM

J

Defendant-.A pp llant.

[January 12, 1976}

Appeal from the United States Distriet Court

for the District of Nevada

Before: CHAMBERS, DUNIWAY, and SNEED, Cireuit Judges.

An immunized witness, Canon, appeals from an order of the

District Court holding him in contcmpt for refusing to comply

with an order that he answer certain questions put to him as a

witness before a grand jury, and conunitting him to the custody

of the Attorney General until he purges himself of the contempt

or until the life of the grand jury expires. |

Canon's motion to strike from the r eord on appeal an affidavit

filed by the government in the Distriet: Court on December 14,

1975, seven days after the Notice of Appeal was filed. and fourtoen

days after entry of the order appealed trem. is granted. Thy

attidayvit Was tiet bree lertte thie Jdistrret (‘senget wy hed if rreciete ifs opeher

and, theretore, Is Hot a proper part «at the reeor on appeal. Ws

express ne opinion as to the signifieanee or effeet of the affidavit

in the Dastriet Court,

BEST COPY AVAILABLE

2a

2 United States of America vs. Michael Irvin Canon

The law does not require that the District Court make the type

of Protective oreer or orders that Canon asker for, although thie

Court, in its diseretion, vould have done »). ey, Golly ry v. ( nited

States, (2nd Cir. 1973) 472 F.&d 513, 516, n. 5; In re Weir, (S.D.

Cal. 1974) 377 F. Supp. 919, aff'd. (9th Cir. 1975) 520 F.2d 662.

Our reading of the reeord, and particularly the colloquy between

counsel and the judge at Tr. pp. 80-2, leads us to agree with the

District Judee that no sufficient elaim of illegal surveillance was

inwie under Tithe 28 U.S.C. See. 3504. See United States vo Nee,

(9th Cir, 1974) 505 Fld 845. As to the attack upon the Court-

authorized cleetronie surveillance of Canon, he is not permitted,

as a reealeitrant witness, to delay the grand jury proceeding

while he litigates the question of the validity of the surveillance.

Droback v. United States, (%h Cir. 1974) 509 P.2d 625; In re

Persico, (2nd Cir. 1974) 491 F.2d 1156. We have not followed

In re Lochiatto, ‘1st Cir. 1974) 497 F.2d 803. See Droback, supra.

The order appealed from is affirmed. No petition for a rehearing

may be filed. The mandate will issue 21 days after the filing of this

Memorandum.