Petition — Rotondo v. United States

Supreme Coust, U. & |

ED i».

SEP 7 977 |

7

in the MICHAEL RODAK, JR., CLERK

of the

United States

OCTOBER TERM 1977

wo-¥7- 360

LOUIS ROTONDO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

- Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES J. HOGAN

AND

JOSEPH MINCBERG

Attorneys for Petitioner

950 South Miami Avenue

Miami, Florida 33130

- —

TABLE OF CONTENTS

Page

EE 2 ae 4 ob eed-bb os ee ks os bos 2

EES ee ha ee 2

GUEST OONS PRESENTED ... .... 2c cccccssvecs. 2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED .............. 3

py ge 8” ag > eee 3

REASONS FOR GRANTING THE WRIT ....... 5

I ole basi + Gud wad dnd Wena ye! w peas 13

ey we Bee & er er ree 14

APPENDIX A - Opinion and Judgment ....... App. |

APPENDIX B - Order on Petition for Rehearing App. 8

APPENDIX C - Statutory Authorities......... App. 9

STATUTES CITED

Title 18, United States Code,

TABLE OF CONTENTS (Continued)

Page

STATUTES CITED (Continued)

DEN cubids caked cenédcaeeciseens 2, 3, 9, 10, 11

RE axécVikcnedsdsdesicesev i vevdensst es 3

Title 28, United States Code,

Dh. nGulcawh ae dnepenls speeeces eoner hens 3, 4

CONSTITUTIONAL AMENDMENTS

Fourth Amendment, United States Constitution .... 3, 8

12, App. 9

OTHER AUTHORITIES

American Bar Association Standards

Relating to Electronic Surveillance,

PU si6ss subdeiictbebeneeesesscavcachoeets 11

S.R. 1437, 95th Cong., Ist Sess.,

St i ee EE ns cbéeneeseees coesccesess 10

S. 1, 94th Cong., 2nd Sess.,

Rpt. No. 94-00, April 1, 1976, page 967 ........... 10

Title 9, United States Attorney’s Manual

Criminal Division, Chapter 7, page 80 ............. 10

owe eee

TABLE OF CITATIONS

I cl ag hel i ee

Alderman v. United States,

394 U.S. 219, 89 S. Ct. 961

RS ED ene me

Gelbard v. United States,

408 U.S. 41, 92 S.Ct. 2357

ee OM Tl . ere

In Re Buscaglia,

ke Be he a re

In Re Horn,

458 F.2d. 468 (3rd Cir., 1972) ..........

In Re Lochiatto,

497 F.2d. 803 (Ist Cir., 1974)...........

In Re Persico,

491 F.2d. 1156 (2nd Cir., 1974) .........

In Re Quinn,

oan Pune, oan (het Cie... I9TS)...... ccccce

United States v. Alter,

482 F.2d. 1016 (9th Cir., 1973) .........

United States v. Fox,

455 F.2d. 131 (Sth Cir., 1972) ..........

United States v. Nemes,

ee Oe, Pere

TABLE OF CITATIONS (Continued)

United States v. Stevens,

510 F. 2d. 1101 (Sth Cir., 1975)

United States v. Vielguth,

502 F.2d. 1257 (9th Cir., 1974)

iv

in the

Supreme Court

of the

United States

OCTOBER TERM 1977

NO.

LOUIS ROTONDO, |

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, LOUIS ROTONDO, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit entered in the above-

entitled case on June 22, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals, printed in Ap-

pendix A hereto, infra (pp. A | - 7), is reported at 554 F.2d

712 (Sth Cir., 1977). od i

JURISDICTION

The judgment of the Court of Appeals was entered on

June 22, 1977, Appendix A, infra (pp. A | - 7). A timely

petition for rehearing and rehearing in bane was denied on

August 8, 1977, Appendix B, infra (p. A - 8). The jurisdic-

tion of this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the witness was deprived of his defense to

the civil contempt proceeding when he made a _ par-

ticularized and specified claim of the illegal electronic sur-

veillance which triggered the Government’s response of dis-

claimer of use and the trial court refused to conduct an in

camera inspection of the interception papers supporting

said surveillance.

2. Whether the Government’s application for a dis-

closure order pursuant to 18 U.S.C. 2517(5) must be sub-

mitted to a court of competent jurisdiction by oath or

affirmation.

on ne

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Constitutional provision involved in this case is:

United States Constitution — Amendment IV

The following listed-statutes are involved in this-case.

18 U.S.C. §3504

28 U.S.C. §1826

18 U.S.C. §2517

18 U.S.C. §2518 (1)

These provisions are set forth in Appendix C annexed

hereto.

STATEMENT OF FACTS

In February of 1977, the Petitioner was subpoenaed

before a Federal Grand Jury sitting in the Southern District

of Florida. On that occasion he refused to testify, relying on

his Fifth Amendment privilege against self-incrimination.

On March 7, 1977, the Petitioner was brought before the

Honorable C. Clyde Atkins, United States District Judge

for the Southern District of Florida, who conferred use —

derivative use immunity upon the Petitioner by virtue of 18

U.S.C. §6002. On March 23, 1977, the witness appeared

before the Grand Jury and again refused to testify repeating

his Fifth Amendment privilege and additionally stating that

the investigation was based upon illegal electronic surveil-

lance in violation of 18 U.S.C. §§2510, et seq.

Thereafter, on April 6, 1977, the Government moved

to have the Petitioner adjudged in civil contempt as a

recalcitrant witness, pursuant to 28 U.S.C. §1826. The

Petitioner filed a written response to the cuntempt motion.

On April 9, 1977, a hearing was conducted before the

Honorable Joe Eaton, United States District Judge for the

Southern District of Florida, for the Petitioner to show just

cause for his refusal to testify before the Grand Jury.

The Petitioner averred before the trial court that the

questions asked of him before the Grand Jury were the

product of illegal electronic surveillance conducted in the

State of New York, on or about February 13 and May 5,

1976. In support of this assertion, the Petitioner produced

two inventories that were provided to him revealing the sur-

veillance aforesaid and the fact that his conversations were

intercepted. The Petitioner further related that by reason of

a prior appearance before a New York Grand Jury, and his

appearance before the Grand Jury at bar, that the questions

asked of him before both Grand Juries concerned the ex-

penditures of funds by one Anthony Salerno since the year

1959. The Petitioner, without contradiction, established

that the New York electronic surveillance was ac-

complished by surreptitious breaking and entering certain

premises to install electronic transmitters and to intercept

conversations occurring on said premises.

The Government responded to the Petitioner’s claim of

unlawful electronic surveillance by stating that the source of

the questions asked of the Petitioner were wire taps secured

by Court authorization which were subsequently deemed

lawful by the Honorable C. Clyde Atkins in United States

of America v. Sklaroff, et al., case number 74-267. Counsel

for the Government filed an affidavit with the trial court to

the effect that all questions asked of the Petitioner were

derived only from the Sklaroff interception and from no

other electronic interception. Counsel further swore that he

personally with the participation of the case agent of the

Federal Bureau of Investigation formulated the questions

asked of the Petitioner and only the court authorized in-

terception wa; utilized in formulating these questions. In ef-

fect, the Government disclaimed use of the New York sur-

veillance as a basis of the questions asked of the Petitioner

before the Grand Jury.

At the conclusion of the civil contempt hearing Judge

Eaton held ihat the Government’s response asserting a dis-

claimer of use was sufficient under 18 U.S.C. §3504 and

therefore held that the witness did not show just cause as to

why he should not be held in civil contempt and thereafter

ordered the Petitioner confined for the life of the Grand

Jury or until he was willing to testify. Judge Eaton stayed

his order of confinement and allowed the Petitioner to re-

main free during the pendency of his appeal to the United

States Court of Appeal for the Fifth Circuit upon the

posting of a $10,000.00 personal recognizance bond.

REASONS FOR GRANTING THE WRIT

1. In Gelbard v. United States, 408 U.S. 41, 92 S.Ct.

2357, 33 L.Ed.2d. 179 (1972) this Court established that a

Grand Jury witness, in defending against a civil contempt

proceeding, could show “‘just cause” for his refusal to

testify before the Grand Jury by invoking the prohibition of

18 U.S.C. §2515. This Court relied upon 18 U.S.C. §3504

for the statutory vehicle by which a claim of unlawful

electronic surveillance could be called to the trial court’s at-

tention. Although these principles were announced by this

Court in 1972, the Court has not spoke of the duties and

obligations which arise from a claim made pursuant to this

section. The instant case presents a classic factual example

which would give this Court an opportunity to set to rest the

confusion that has arisen in the trial and appellate courts in

the Federal system concerning a witness’s claim, the

Government’s response, and the trial court’s disposition of

matters arising under 18 U.S.C. §3504.

The essence of the argument advanced by the

Petitioner and vigorously contested by the Government

below was the propriety of the proceeding surrounding the

Petitioner's claim pursuant to 18 U.S.C. §3504. The

Petitioner made a particularized and specific claim of il-

legal electronic surveillance pursuant to §3504 and the

Government's response thereto merely disclaimed use of

this surveillance without affirming or denying its existence,

although it is apparent that a disclaimer of use affirms the

existence of said surveillance without admitting or denying

its legality. The Petitioner requested that the trial judge

make an in camera determination as to the facial validity of

the documents supporting the alleged illegal electronic sur-

veillance. The trial judge failed to do so, relying instead

upon the Government’s disclaimer of use. Based on these

facts the subsequent implementation of a §3504 claim is

squarely presented for decision which the lower court failed

to do.

The Court of Appeal’s decision was based upon its er-

roneous belief that the Petitioner requested an evidentiary

hearing before the trial court (See Appendix A, p. 5).

This initial premise put the cart before the horse. It is

obvious that there cannot be tainted evidence until there is

an initial determination of legality. In the instant cause,

without a determination of the legality of the New York

surveillance, no evidentiary hearing was requested or neces-

sary. If the trial judge had made an in camera determina-

tion of the facial validity of the documents and determined

that said documents were valid, any further inquiry would

have been foreclosed. If the trial judge ruled that such

papers were facially invalid, thereby rendering the evidence

obtained therefrom illegal, then and oniy ther. would there

have been a need for an evidentiary hearing to determine

taint. A two-pronged test arises from this analysis. First,

the trial judge, based upon a claim of the witness and

response of the Government, must decide if there was

electronic surveillance and whether it was legal. Secondly, if

the surveillance was illegal an evidentiary hearing must be

conducted to determine whether the Government’s ques-

tions were a product of or tainted by said surveillance. The

Court of Appeal’s opinion completely ignored the first

prong of this test and in so doing the decision mis-

interpreted the pertinent statute (18 U.S.C. §3504) which

was not mentioned in the opinion and the body of law that

has developed in this area.

Most of the litigation surrounding §3504 has centered

upon the adequacy of a witness’s claim and the Govern-

ment’s response. United States v. Alter, 482 F.2d. 1016 (9th

Cir., 1973); United States v. Stevens, 510 F.2d. 1101 (Sth

Cir., 1975); In Re Lochiatto, 497 F.2d. 803 (ist Cir., 1974);

In Re Buscaglia, 518 F.2d. 77 (2nd Cir., 1975); In Re Horn,

458 F.2d. 468 (3rd Cir., 1972); In Re Quinn, 525 F.2d. 222

(Ist Cir., 1975); United States v. Vielguth, 502 F.2d. 1257

(9th Cir., 1974); and Jn Re Persico, 491 F.2d. 1156 (2nd

Cir., 1974). The instant case presents not only questions of

the adequacy of the witness’s claim and the Government’s

response but additionally the duties of the trial judge in

acting on said claims and responses,

7

Although the Court of Appeal’s decision greatly mis-

conceives the witness’ position the opinion likewise runs

afoul of the body of jurisprudence which uniformly stands

for the proposition that the Government is not allowed to

make ex parte determinations in the Fourth Amendment

context. Alderman v. United States, 394 U.S. 219, 89 S.Ct.

961, 22 L.Ed.2d. 176 (1969). This principle is best evidenced

by the Fifth Circuit’s decision in United States v. Fox, 455

F.2d. 131 (Sth Cir., 1972), wherein the Fifth Circuit was

presented with facts which showed that the Government

was in possession of illegally obtained evidence which they

claimed was not to be used in the prosecution of the case.

Out of an abundance of caution, the Government presented

this evidence to the trial judge who found that even if the

evidence were illegal it would have “‘no arguable relevance”

to the proceedings before it. The Fifth Circuit held that the

“no arguable relevance” finding was insufficient to vin-

dicate the Defendant’s Fourth Amendment rights as ex-

plained in Alderman. Certainly, the “no arguable

relevance” finding is analogous to the disclaimer of use ad-

vanced by the Government herein and is likewise insuf-

ficient to protect the witness’ claim of a Fourth Amend-

ment violation. The statement in the Fifth Circuit Court’s

Opinion, to-wit ‘““There was no evidence to the contrary of

that produced by the Government and no reason to believe

otherwise.”’, (Appendix A, p.7), surely violated the princi-

ples announced in Alderman and Fox.

In the Fifth Amendment context a similar assertion of

the disclaimer of use by the Government was rejected by the

Court in United States v. Nemes, ___ F.2d. ____ (2nd Cir.,

1977), wherein the Court held that a disclaimer of use does

not preclude the possibility that some tainted evidence

leaked into the Government’s possession without

knowledge of the person making the disclaimer of use and

that further inquiry was necessary to protect the Defend-

ant’s Fifth Amendment rights.

If the opinion of the Fifth Circuit is permitted to stand

then a Grand Jury witness, who is able to point with par-

ticularity to electronic surveillance by which he was

overheard, can be denied his statutory rights under §3504

by a mere ex parte determination by the Government that

the surveillance is not being used in formulating the ques-

tions asked of the witness. This will occur without there

being any determination as to the legality of the surveil-

lance. This result circumvents the clear purpose of §3504.

This case can clarify existing case law and can resolve

future situations in a very simple manner with due regard

for the Defendant’s rights under §3504 and the efficient

functioning of the Grand Jury. If the Government were to

properly affirm the existence of the New York electronic

surveillance, which in effect it has already done by its dis-

claimer of use, all that need be done is for the trial judge to

make an in camera inspection of the facial validity of the

documents supporting the New York surveillance. If this

surveillance is determined to be legal all further inquiry is

foreclosed. Only if there is a determination of facial il-

legality does it become necessary to give the witness an op-

portunity to show that in some fashion the questions asked

of him were linked or tainted by the illegal surveillance. If

he fails in this endeavor, then he must answer or be held in

contempt.

Il. The Petitioner asserted that the application for an

order of disclosure of evidence of crimes other than those

named in the original interception order pursuant to 18

U.S.C. §2517(5) should have been submitted to the court by

oath or affirmation. The opinion of the Court of Appeals

noted that “there is no requirement in the subsection requir-

ing oath or affirmation.’(Appendix A, p. 7). This finding is

facially correct, however, the Petitioner submits that there

is an abundance of authority suggesting that underlying

policy considerations and interpretation of the Wire Tap

Act as a whole require said affirmation or oath.

The Senate of the United States in its report in connec-

tion with the new Federal Criminal Code contained in S.R.

1437, 95th Cong., Ist Sess., May 2, 1977, page 197,

observed that an application for disclosure of evidence ob-

tained by interception for crimes other than those named in

the original intercept order “shall be made in accordance

with §3102 .. . ” Section 3102 governs original applica-

tions to intercept orders which mandate that said applica-

tions be made under oath or affirmation.

In the report of the Committee of the Judiciary of the

United States Senate to accompany S. 1, 94th Cong., 2nd

Sess., Report No. 94-00, April 1, 1976, page 967, the obser-

vation is made that “when a law enforcement officer

engaged in the authorized interception of a private oral

communication intercepts a private oral communication

that relates to an offense other than one specified in the

order, he may make an application under section 3102 for

an order approving the unrelated interception as soon as

practicable after the unrelated interception occurs.” (3104)

Again, §3102 refers to the initial application to intercept

oral or wire communications which must be submitted un-

der oath or affirmation. In addition, Title 9, United States

Attorney’s Manual, Criminal Division, Chapter 7, page 80-

82 dealing with electronic surveillance suggests that an ap-

plication for a disclosure order pursuant to 18 U.S.C.

2517(S) must be submitted under affirmation or oath.

10

The American Bar Association Standards relating to

electronic surveillance, §5.6 states in pertinent part:

“The use or disclosure of facts contained in an

overheard or recorded communication relating to

an offense other than the offense under investiga-

tion should be permitted where an application for

an order of approval is duly made as provided in

5.3 which includes an additional showing that the

overhearing or recording was or could have been

otherwise authorized.”

Section 5.3 referred to above sets out the well recognized

principles governing an original application to intercept,

which must be submitted under affirmation or oath.

It is readily apparent that although the subsection

itself does not contain a specific mandate that the applica-

tion be submitted under oath or affirmation al! supportive

reports, studies and commentaries, reflect that an applica-

tion under §2517(5) must be submitted as if it were an

original appiication to intercepi with the additional findings

as required by the subsection. It is clear that any “‘ap-

plication” especially one that deals with evidence obtained

of a nature not originally authorized, must be submitted un-

der oath or affirmation, although not specifically mandated

in the subsection.

Congress enacted §2517(5) to overcome the problem

encountered when agents conducting a lawful wire tap

overhear incriminating conversations relating to offenses

other than those named in the interception order. Thus,

§2517(5) serves to supplement the interception order and

permits the use of the interception of unnamed offenses or

evidence derived therefrom only upon subsequent applica-

tion and order. If the original application to intercept and CONCLUSION

subsequent application for extensions must be made under

affirmation or oath, so then must subsequent applications For the foregoing reasons, it is respectfully submitted

for disclosure of interception conversations or evidence that a writ of certiorari should be granted by this Court.

derived therefrom as to crimes not named in the original in-

terception order if this provision is to comply with the Respectfully submitted,

Fourth Amendment.

! JAMES J. HOGAN

j and

JOSEPH MINCBERG

Attorneys for Petitioner

950 South Miami Avenue

Miami, Florida 33130

Phone: (305) 377-8291

12 13

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the forego-

ing Petition for Writ of Certiorari was mailed, postage

prepaid, to the Solicitor General, Department of Justice,

Washington, D.C. this day of

1977.

14

Append

APPENDIX A

In re GRAND JURY PROCEEDINGS.

UNITED STATES of America,

Appellee,

v.

Louis ROTUNDO, Appellant.

No. 77-1900

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

June 22, 1977.

Defendant appealed from an order of the United

States District Court for the Southern District of Florida,

Joe Eaton, J., holding him in contempt of court for refusing

to testify before a grand jury which was investigating illegal

gambling operations. The Court of Appeals held that: (1)

an acting United States attorney was authorized to request

the grant of use immunity for a grand jury witness; (2) the

district court was not required to hold an evidentiary hear-

ing to determine whether questions propounded to defen-

dant before the grand jury were tainted by an electronic sur-

veillance, absent evidence contravening the government’s

* Rule 18, 5 cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New

York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

App. |

denial of any such taint, and (3) the government’s applica-

tion to use the contents of wire interceptions relating to of-

fenses other than those specified in the intercept order was

sufficient.

Affirmed.

1. Witnesses —304(1)

Acting United States attorney was authorized to re-

quest grant of use immunity for grand jury witness where

United States attorney specifically’ designated him in

writing to perform functions and duties of United States at-

torney during his absence. 18 U.S.C.A. §§ 6002, 6003.

2. Grand Jury —36

Absent evidence contravening government’s denial

that any information from an electronic surveillance was

used in connection with questions propounded to witness

before grand jury, there was no requirement that district

court hold evidentiary hearing to permit witness to show

taint from that electronic surveillance before holding him in

contempt for refusing to testify before grand jury.

3. Grand Jury —36

Government’s application to use contents of wire in-

terceptions relating to offenses other than those specified in

intercept order was sufficient and was made as soon as

practicable under circumstances of case and thus questions

to grand jury witness resulting from that surveillance were

not illegal. 18 U.S.C.A. § 2517(5).

App.2

4. Telecommunications —496

Application to use contents of wire interceptions

relating to offenses other than those specified in intercept

order did not have to be supported by oath or affirmation.

18 U.S.C.A. § 2517(5)

Appeal from the United States District Court for the

Southern District of Florida.

Before AINSWORTH. MORGAN and GEE, Circuit

Judges.

PER CURIAM:

This is an appeal from an order of the district court ad-

judging appellant Louis Joseph Rotundo in contempt of

court for refusing to testify before a grand jury which was

investigating illegal gambling operations. Rotundo’s

recalcitrance occurred despite his having been granted use

immunity by-the district court pursuant to the written mo-

tion signed by the Acting United States Attorney. We have

examined all of the assertions of error asserted by appellant

and find them to be without merit. Accordingly, the judg-

ment holding appellant in contempt of court is affirmed.

[1] Rotundo challenges the authority of the Acting

United States Attorney to request the grant of use im-

munity upon him as a witness. He contends that the United

States Attorney alone may lawfully make such a motion on

behalf of the Government. However, the United States At-

torney specifically designated his Chief Assistant, Mr. An-

tle, in writing to perform the functions and duties of the

App. 3

United States Attorney during his absence pursuant to 28

C.F.R. sec. 0.131.' In our view, this was adequate to comp-

ly with 18 U.S.C. sec. 6003? pertaining to a motion to order

an individual to give testimony despite his privilege against

self-incrimination upon the grant of immunity as provided

'28 C.F.R. sec. 0.131, reads as follows:

Each U.S. Attorney is authorized to designate any Assistant U.S. At-

torney in his office to perform the functions and duties of the U.S. At-

torney during his absence from office, and to sign all necessary documents

and papers as Acting U.S. Attorney while performing such functions and

duties.

*18 U.S.C. sec. 6003, provides:

(a) In the case of any individual who has been or may be called to testify

or provide other information at any proceeding »*fore or ancillary to a

court of the United States or a grand jury of the United States, the United

States district court for the judicial district in which the proceeding is or

may be held shall issue, in accordance with subsection (b) of this section,

upon the request of the United States Attorney for such district; an order

requiring such individual tc give testimony or provide other information

which he refuses to give or provide on the basis of his privilege against self-

incrimination, such order to become effective as provided in section 6002

of this part.

(b) A United States attorney may, with the approval of the Attorney

General, the Deputy Attorney General, or any designated Assistant At-

torney General, request an order under subsection (a) of this section when

in his judgment—

(1) the testimony or other information from such individual may be

necessary to the public interest; and

(2) such individual has refused or is likely to refuse to testify or provide

other information on the basis of his privilege against self-incrimination.

App.4

EEE

by 18 U.S.C. sec. 6002.’ See United States v. Smith, 10 Cir.

1976, 532 F.2d 158 which approved the designation of an

Acting Assistant United States Attorney to perform the

functions and duties of the United States Attorney as

specifically authorized by 28 C.F.R. sec. 0.131.

[2] Appellant further asserts as error the failure of the

trial court to grant an evidentiary hearing to permit him to

show taint from a New York electronic surveillance. It is

clear from the record that neither the prosecutor nor the

FBI Agent assisting him had any prior knowledge of the

New York interceptions and that they had just been in-

formed thereof before hearing of this contempt proceeding.

The Government’s counsel (Mr. Steinberg) specifically

denied in open court that any information from the New

York surveillance was used in connection with questions

propounded to Rotundo before the grand jury. It was

stipulated that Mr. Heist, the FBI Agent assisting the

prosecutor, would similarly testify. An affidavit by Mr.

Steinberg, Special Attorney for the United States in charge

18 U.S.C. sec. 6002, provides in pertinent part as follows:

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,

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 infor-

mation directly or indirectly derived from such testimony or other infor-

mation) 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.

App. 5

of the investigation concerning Rotundo, to the same effect

was filed in the record herein. The affidavit averred that the

only electronic surveillance used by the Government was

that referred to in the case of United States v. Sklaroff

which was.not connected with the New York surveillance.

Lawfulness of that intercept has recently been affirmed by

us in United States v. Sklaroff, (5 Cir. decided May 27,

1977) 552 F.2d 1156. There was no evidence to the contrary

of that produced by the Government and no reason to

believe otherwise. See In re: Lochiatto, | Cir. 1974, 497

F.2d 803; In re: Millow, 2 Cir. 1976, 529 F.2d 770. Thus,

the assertion of error is without merit, there being no need

for an evidentiary hearing under the circumstances.

[3, 4] It is further charged that the trial court erred and

failed to hold that the government’s application for dis-

closure under 18 U.S.C. sec. 2517(5) was insufficient and

that being true the questions to the witness Rotundo before

the grand jury were illegal.‘ Thus, appellant contends that

he asserted ‘ta’ complete defense’ to the contempt

proceeding. We have examined the Government’s applica-

tion to use the contents of wire interceptions relating to of-

fenses other than those specified in the intercept order as

well as the order of Judge King granting the Government’s

*18 U.S.C. sec. 2517(5), reads as follows:

When an investigative or law enforcement officer, while engaged in in-

tercepting wire or oral communications in the manner authorized herein,

intercepts wire or oral communications relating to offenses other than

those specified in the order of authorization or approval, the contents

thereof, and evidence derived therefrom, may be disclosed or used as

provided in subsections (1) and (2) of this section. Such contents and any

evidence derived therefroin may be used under subsection (3) of this section

when authorized or approved by a judge of competent jurisdiction where

such judge finds on subsequent application that the contents were

otherwise intercepted in accordance with the provisions of this chapter.

Such application shall be made as soon as practicable.

App. 6

motion for disclosure. In our view, there has been sufficient

compliance with the requirements of 18 U.S.C. sec.

2517(5). We reject, therefore, the contention that the dis-

closure was insufficient. Read with the Government's ap-

plication Judge King’s order is ample. Nor is the Govern-

ment’s application defective for failure to be supported by

oath and affirmation. There is no requirement in the sub-

section requiring an oath or affirmation. We are also

satisfied that the application was made “‘as soon as prac-

ticable’” under the circumstances of this case.

AFFIRMED.

App. 7

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

August 8, 1977

EDWARD W. WADSWORTH TEL 504-589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA. 70130

TO ALL PARTIES LISTED BELOW:

NO. 77-1900 — IN RE: GRAND JURY

PROCEEDINGS

U.S.A. v. LOUIS ROTUNDO [SIC]

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing**, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for is-

suance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ Brenda M. Hauck

Deputy Clerk

**on behalf of appellant, Louis Rotundo, [sic]

ce: Mr. James J. Hogan

Mr. Marty Steinberg

App.8

APPENDIX C

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their

persons, houses, papers and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

Title 18, U.S.C. §2517, provides in pertinent part:

(1) Any investigative or law enforcement officer

who, by any means authorized by this chapter, has

obtained knowledge of the contents of any wire or

oral communication, or evidence derived

therefrom, may disclose such contents to another

investigative or law enforcement officer to the ex-

tent that such disclosure is appropriate to the

proper performance of the official duties of the of-

ficer making or receiving the disclosure.

(2) Any investigative or law enforcement officer

who, by any means authorized by this chapter, has

obtained knowledge of the contents of any wire or

oral communication or evidence derived

therefrom may use such contents to the extent

such use is appropriate to the proper performance

of his official duties.

(3) Any person who has received, by any means

authorized by this chapter, any information con-

App. 9

cerning a wire or oral communication, or evidence

deriyed therefrom intercepted in accordance with

the provisions of this chapter may disclose the

contents of that communication or such derivative

evidence while giving testimony under oath or af-

firmation in any proceeding held under the

authority of the United States or of any state or

political subdivision thereof.

* * *

(S) When an investigative or law enforcement

officer, while engaged in intercepting wire or oral

communications in the manner authorized herein,

intercepts wire or oral communications relating to

offer:ses other than those specified in the order of

authorization or approval, the contents thereof,

and evidence derived therefrom, may be disclosed

or used as provided in subsections (1) and (2) of

this section. Such contents and any evidence

derived therefrom may be used under subsection

(3) of this section when authorized or approved by

a judge of competent jurisdiction where such

judge finds on subsequent application that the

contents were otherwise intercepted in accordance

with the provisions of this chapter. Such applica-

tion shall be made as soon as practicable.

Title 18, U.S.C. §2518(1), provides in pertinent part:

Each application for an order authorizing or ap-

proving the interception of a wire or oral com-

munication 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.

App. 10

Title 18, U.S.C. §3504, provides:

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

or before any court, grand jury, department, of-

ficer, 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 ob-

tained by the exploitation of an unlawful act, the

opponent of the claim shall affirm or deny the oc-

currence of the alleged unlawful act;

(2) disclosure of information for a deter-

mination of evidence is inadmissible because it 1s

the primary product of an unlawful act occurring

prior to June 19, 1968, or because it was obtained

by the exploitation of an unlawful act occurring

prior to June 19, 1968, shall not be required unless

such information may be relevant to a pending

claim of such inadmissibility; and

(3) no claim shall be considered that

evidence of an event is inadmissible on the ground

that such evidence was obtained by the exploita-

tion of an unlawful act occurring prior to June 19,

1968, if such event occurred more than five years

after such allegedly 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.

App. !1

Title 28, U.S.C. §1826, provides:

(a) Whenever a witness in any proceeding before

or ancillary to any court or grand jury of the

United States refuses without just cause shown to

comply with an order of the court to testify or

provide other information, including any book,

paper, document, record, recording or other

material, the court, upon such refusal, or when

such refusal is duly brought to its attention, may

summarily order his confinement at a suitable

place until such time as the witness is willing to

give such testimony or provide such information.

No period of such confinement shall exceed the

life. of —

(1) the court proceeding, or

(2) the term of the grand jury, including ex-

tensions, before which such refusal to comply with

the court order occurred, but in no event shall

such confinement exceed eighteen months.

(b) No person confined pursuant to subsection

(a) of this section shall be admitted to bail pending

the determination of an appeal taken by him from

the order for his confinement if it appears that the

appeal is frivolous or taken for delay. Any appeal

from an order of confinement under this section

shall be disposed of as soon as practicable, but not

later than thirty days from the filing of such ap-

peal.

App. 12