Brief for the United States in Opposition — Egan v. United States

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Joaurs EGAN, PETITIONER

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Untrep STaTes or AMERICA

ON. CONDITIONAL CROSS-PETITION FOR

A ‘WRIT OF CERTIORARI

TO THE UNITED. STATES coURT OF APPEALS FOR THE THIRD

CIRCUIT S

eee eee

- *

SEwyis &.

ROBERT Cc.

GRISWOLD,

Solicitor General,

MARDIAN,

Assistant Attorney General,

2 ROBERT L. KEUCH,

: | JAMES V. EATZ, —

Attorneys,

Department of Justice,

Washington, D.C. 20530. -

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In the Supreme Court of the Gnited States

OcToBER TERM, 1971

No. 71-405

JOGUES EGAN, PETITIONER

v. .

UNITED STATES OF AMERICA

ON CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The en banc opinion of the court of appeals and the

panel opinion, reproduced in the Petition for a Writ

of Certiorari filed by the Government in United States

v. Egan, Oct. Term, 1971, No. 71-263, Appendices A

and C, are not yet reported.

| | _ JURISDICTION

~The judgment and en bane opinion of the court of

appeals were filed on May 28, 1971. The petition for a

writ of certiorari was filed on August 20, 1971. The

conditional cross petition for a writ of certiorari was

filed on September 21, 1971. The jiirisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

447—309—71

ous ee

2

1. Whether the notice given petitioner of the hear-

ing on the immunity application and the conduct of

the subsequent contempt citation were procedurally

proper.

2. Whether the petitioner was entitled to refuse to

answer questions put to her by the grand jury on the

ground that the answers to these questions might un-

cover certain crimes not included in the statutory pro-

Visions dealing with immunity of witnesses.

3% Whether the government's use in this case of the

transeectional inmunity provided in 18 U SC, 214

Was constitutional,

STATUTES INVOLVED

Is USC, 24 (dealing with immunity of wit-

teases) and IS U.S.C, 2516 (dealing with authoriza-

tien for interes ptien of wire or oral communications)

are repreduced in Pet. App. B.

STATEMENT

On January 14, 1971, petitioner Egan appeared,

pursuant to a sulpoena, before a wrand jury sitting at

Harri-arg, Pennsvivania, whieh was engaged in the

investigation of alleged violations under certain crimi-

nal statutes, including 18 U.S.C, 1201, the kidnapping

statute, and 18 U.S.C. 371, the con<piracy statute. The

grand jury asked petitioner <eceral questions at that

time, Which she refused to answer on various grounds,

including her Fifth Amendment privilege against self-

incrimination.

a On the same day the United States Attorney for

the Middle Distriet of Pennsylvania filed an applica-

= te ie

tion for an order granting immunity to petitioner and

instructing her to testify pursuant to 18 U.S.C. 6008,

Petitioner claimed that she could not constitu! ionally

be compelled to testify under that provision since it

did not protect her from prosecution. A continuance

sought by petitioner was granted, and the hearing

was continued to January 15, 1971, and then to Jan-

uary 25, 1971, at which time the court granted im-

munity to petitioner pursuant to-18 U.S.C. 6003, and

ordered her to answer the questions propounded by

the grand jury.

On Jamary 26, 1971, the government, having been

informed that petitioner would continue to cloum her

Pifth Amendment privilege, attempted to expen ite the

grand jury proceedings by applying fer an order

instructing the petitioner to testify pursint te 18

US.C. 2514, which provides inmunity addity nal te .

that provided by 18 U.S.C. 6008. The court cranted

petitioner full tranmetional inmuunity pursvont te

Section 2514 and ordered her ty anewer the oq) <tiens

put by the grand jury.

Petitioner returned te the gramd jury and eo ined

to refuse te answer questions, relying, amenc other

grounds, on the Fourth Amendment. She allew I that

the information which led te her <alpeena an’ whieh

provided the hasix for the question< was th. result

of legal wiretapping and electronic surveillance. The

government sought and obtained an order ¢. slew

cause Why she should not be held in: conten oat. At

the contempt hearing petitioner persisted mm ber re-

fausal. The eourt, after hearing additional ar. oment,

found the petitioner in civ! contempt and « aitted

4

her to the custedy of the United States Marshal for

- the Middle Distriet of Pennsylvania for the life of

the grand jury or until she responded te the question-~

put to her.

ARGUMENT

1. The notice which petitioner received as to the

hearing on the immunity application was procedurally

adequate. Although petitioner was given only fifteen

minutes netice of the immunity hearing, several cases

have upheld the practice of holding an immunity hear-

ing shortly after a witness whose testimeny the United

States Attorney has determined to be “necessary to

the public interest” has refused te answer questions

propounded by a grand jury. Russo v. United States,

No. 71-2046, C_A. 9, decided August 17, 1971: 1 ited

States ©. Weinberg, 439 F. 2d 743 (CLA. 9): Licute v.

United States, 429 F. 2d WTT (CA. 9), vacated ax

moot, 400 US. 938; In re Lazarus, 276 F. Supp. 44

(C.D. Cal.) ; In re Loughran, 276 F. Sapp. 293 (C1).

Cal.). In Licata v. Uwited States, supra, the Ninth

Cirenit addrex<ed itself direetly tee petitioner < con-

tention and held that “Section 2514 <newest< and we

conelude that ixsuanee of such an order, [granting

immunity | ix a mitisterial act requiring ne “ithe T hetice

nor a hearing.”

The US. Attorneys assertion that the te<ti-

mony of a witness ix “necessary to the public

interest™ must he aceepted by the court to whieh

the application ix presented: Ullman v. United

States, 0 US. 422 (1956): his representations

concerning the offenses being investigated In

the grand jury must likewise be accepted.

— eee me =

.

Furthermore, no opportunity to exercise judi-

cial discretion arises with respect to the

Attorney General's approval of the application:

he either assents or he doesn’t assent. Thus the

apphesiion tenders no issue, either factual or

legal, for judicial decision. [429 F. 2d at 1179. }

Petitioner contends in her conditional cross petition

(Pet. 7) that Licata is in direct conflict with Jn re

Bart, 304 F.2d 631 (CLA. D.C.). The proceeding in

Bart, however, involved a differénut iImmMuUunitv statute,

IS U.S.C. 3486, which the court of appeals read as

requiring that the judge determine whether the offense

under investigation invelved “interference with or

endangering the national security.” Courts do net, as

the above cited cases hold, have the power or funetion

nader IS U.S.C, 2514 to inquire into the merits of the

United States Attorney's determination, approved by

the Attorney Gener: al, that testimony is “*necessary to

the public interest.” See also In re Shead, 302 F.

Supp. 969, 570 (NLD. Cal.) affirmed sab nom.-Carter v.

United States, 417 F. 2d 384 (CLA. 9). certiorari

denied, 399 ULS., 935.

In United States v. Weinberg, supra, the court

wuldressed itself to the eontention which petitioner

raises here that Rule 6(d) of the Federal Rules of

Civil Procedure precludes the holding of hearings on

etions immediately after notice thereof. The court

peinted out what while Rule 6(d) provides for five

days’ netics prior te hearing of motions, it alse

provides that a dic orent period may be fixed In the

court. The district court in that ease had denied a

thetion for a continuance and order that the Section

6

2514 proceeding be held almost immediately after the

witnesses had refused to testify before the grand jury.

On review of the contempt proceedings, the court of

appeals approved of the trial court’s expeditious

handling of the situation, noting that ‘** * * such @

proceeding is by its nature preliminary and sum-

mary * * *," (439 F.2d at 746.) In answer to the wit- |

nesses” claim of prejudice, the court stated that the

Witnesses “could not have been prejudiced by the

grant of immunity beeause such a grant is for the

henetit of the witness.” (439 F.2d at 747.)

Petitioner’ also argues that she was denied due

process at her contempt hearing because the district

ent did not grant her adequate notice and time to

present defenses to the contempt citation. 28 U.S.C.

Section 1826(a), however, authorizes the holding of a

summary civil contempt proceeding in its provision

that: ;

Whenever a witness in any proceeding be-

fore * * * any court or grand jury * * * re-

fuses without just cause shown to comply with

an order of the court to testify * * * 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 * * *,

Several courts have apheld the application of this

statutory provision in circumstances similar to those

here. See, ¢.g., United States v. Weinberg and Licata

v. United States, supra; In re Grand Jury Tuvesti-

7

gation of Giancana, 352 F. 2d 921 (C.A. 7), certiorari

denied, 382 U.S. 959; In re Lazarus, 276 F. Supp.

434. (C.D. Cal.). As this Court explained in

Shilltitant v. United States, 384 U.S. 364, summary

proceedings are proper in these circumstances because

in such a proceeding the recalcitrant witness carries

the keys to the jail in his own pocket. 384 U.S. at 368.

2. Petitioner’s contention that the trial court erred in

not making a determination prior to granting immunity

that the questions would pertain solely to crimes with-

in the scope of the statutes listed in the government’s

application is without merit. Although the vast ma-

majority of the questions posed to petitioner, and the

indictment * resulting from the grand jury proceed-

ings, plainly related to the specified statutes, the

judge was not obligated to examine the relevance of

all the grand jury’s questions. Indeed, such an in-

quiry would have interfered with the normal secrecy

in which gtand jury proceedings have traditionally

been held. See United States v. Harris, 334 F. 2d 460,

462 (C.A. 2). As Judge Zirpoli stated in In re Grand

_ Jury Witnesses, 322 F. Supp. 573, 577 (N.D. Cal.):

The whole point of the investigation ix to iden-

tify persons known to the respondents who

may have engaged in [unlawful] activities * * *,

and also to ascertain the details of their unlaw-

ful activities. All questions directed to such ob- -

jectives of the investigation are unquestionably

relevant, and any other evaluation thereof by

*The grand jury subsequently returned an indictment on

Jan. 12, 1971. charging, inter alia. a conspiracy to kidnap a

government. official and the destruction of government property.

: 8

the Court without knowledge of the facts be-

fore the Grand Jury would clearly constitute

“undue interference of the Court.” *

Allowance of a full range of questioning is not

prejudicial to the witness. For once it is found that

the grand jury is conducting an inquiry into a field

where immunity, under Section 2514, pertains; then

the witness obtains full immunity as to everything

arising out of that inquiry, including aets which might

constitute a violation of other statutes; thus no dilem-

ma is presented to a witness if the questions are rele-

vant to other violations. Carter v. United States, 417

F. 2d 384, 388 (C.A. 9), certiorari denied, 399

Us. 9352. In anv event, an examination of the in-

= As stated in Jn ve Grand Jury Tncestiqation of Giancana,

a2 F.2d at 924 supra:

We are unable to say that answers responsive to these

questions might not logically be of assistance to the

grand jury. That body may, by various avenues of in-

terregation, exercise its traditional funetions in such a

way as to elicit information about possible criminal viola-

tions. In seeking to establish the facts. a grand jury. in

framing its questions to a witness. may adopt its form of

approach to that most strategically suited to elicit the

facts. Its form may be direct or indirect. If the latter,

certain questions might be considered irrelevant if stand-

ing alone, when they are actually relevant as a part of

a plan to elicit material information on a subject under

consideration by the jury.

*No court has held that every question must relate to the

particular violation under which immunity is granted. As stated

in Mares vo United States, 310 F. 2d 148, 147, n. 2 (C.A. 3),

certiorari denied, 372 U.S. 944) :

Equally unfounded is appellant’s assumption. that his

testimony must be limited to violations of that Act, and

that the Court should not have directed him to answer

9

dictment returned by the grand jury in this case on

January 12, 1971, reveals a close interrelationship

among the alleged offenses investigated by it.

3. Petitioner also attacks the application to her of

the transactional immunity provisions on the broad

ground that transactional immunity statutes are un-

constitutional. The constitutionality of transactional

immunity statutes was long ago settled in Brown v.

Walker, 161 U.S. 591, and need not be reconsidered

by this Court now.

CONCLUSION

It is respectfully submitted that the conditional

cross petition for a writ of certiorari should be denied.

Erwin N. Griswo ip,

Solicitor General.

Rosert C. Marpian,

Assistant Attorney General.

Ropert L. Keven,

James V. Karz,

Attorneys.

OcToBER 1971.

al? questions. A witness cannot control the scope of a

vrand jury investigation or challenge the relevancy of

questions asked. Hale v. Henkel. 201 U.S. 43, 65 (1906):

Nelson v. U.S... 201 U.S. 92 (1506) [emphasis in original}.

{ S. GOVERNMENT PRINTING OFFICE ter