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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0817%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States in Opposition
- **Published:** January 1, 1972
- **Citation:** 408 U.S. 922

## Text

2 SS Cieéatey | 4
| “muvee counr, ue

A

“+ No, T1406 *

Supreme Goon, US:
ye FILED 2%

\{ ‘oct Langs
| geen sc a ‘!

Ny

i=

an
S ae

Sate Serene Gaur ofthe Tite Pies

OctoBEr TERM, 1971.

\

Joaurs EGAN, PETITIONER

a P

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. -

co

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0817%3A2. Public record. Not legal advice.