Petition for A Writ of Certiorari — Persico v. United States

Octroser TER

.. €3-1741

—

ALPHONSE PERSICO,

Petitioner,

—_—Vi—

Unitep STaTes OF AMERICA.

—<f——$§

JERRY LANGELLA,

Petitioner,

—_—Vi—

Unitep States OF AMERICA.

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT AND THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF NEW YORK

Rosner, Fisner & Scripner

401 Broadway

New York, New York 10013

(212) 925-8844

Attorneys for Petitioner, Persico

Gustave H. Newman

522 Fifth Avenue

New York, New York 10036

(212) MU 2-4066

Attorney for Petitioner, Langella

Of Counsel:

Nancy Rosner

ALAN ScRIBNER

ae

In THE MAY 20 1974

A

ee

INDEX

Opinions Below _.22222222002..-- scaliaphiaaetelaetainonbaieste

Be el ain eee

Questions Presented 2000000...

Constitutional Provisions and Statutes Involved _.....

masent of the Cce

; SS, Ra ee ee eee

eR earn

Proceedings Below ...................

Reasons FOR GRANTING THE Writ:

I. The decision below emasculates this Court’s

II.

decision in Gelbard and Egan and is based

upon misreadings of the opinions in Calandra

and Dionisio and the legislative history of

Chapter 119 of Title 18 of the United States

RANOND cecatcivcnecccunenes

Certiorari should be granted because a con-

flict between the Circuits exists regarding the

applicability of Fed. R. Crim. P. 42(b) to an

18 U.S.C. $1826(a) contempt proceeding ........

11

13

aa oc ee em oH OND ha Ge EG

enter Seay Ore 4 o°

OR en

Pitas tert cae stan ree eet atcinn er Hii wd

PAGE

Il]. The Court below disregarded the legal stand-

ard enunciated in Sterens v. Marks, 383 U.S

234 (1966) when it reviewed petitioner Per-

sico’s claim that the description of the im-

munity given to him by government counsel

was fatally misleading 26

CoNCLUSION 31

APPENDIX:

Opinion of the Court of Appeals ... la

Order Adjudging Petitioner Persico to Be in Con-

I cicnsisictckesaitsiainnicasdaahion 15a

Order Adjudging Petitioner Langella to Be in

RING <sactccnetcnak oes 17a

Order of Immunity for Petitioner Persico .......... 19a

Order of Immunity for Petitioner Langella ........ 20a

Statement Read by Petitioner Langella to the

Grand Jury : 2la

Extract of Contempt Proceedings as to Petitioner

Persico 22a

Extract of Contempt Proceedings as to Petitioner

Langella ... dla

CITATIONS

Cases: |

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) 28

Cali v. United States, 464 F.2d 475 (1st Cir. 1972) ........ 14

Counselman v. Hitchcock, 142 U.S. 547 (1892)

- il

PAGE

Egan v. United States, 408 U.S. 41 (1972) 2. 9,11

Gardner v. Broderick, 392 U.S. 273 SE Sic 27

Gelbard v. United States, 408 U.S. 41 (1972)... 6, 9, 11, 15,

16, 18, 20, 23

Kastigar v. United States, 406 U.S. 441 CREED adiecbedes 27

Langella v. New York, N.Y.S.2d , No. 25584/

72 (Sup. Ct. N.Y. Co. Dee. 19, 1972) oe. eccccccecosooe----. 9

Mayberry v. Pennsylvania, 400 U.S. 455 ( BORED cscs 25

Murphy v. Waterfront Commission, 378 U.S. 52 (1964) 29

People v. Masiello, 28 N.Y.2d 287 (1971) ..............-..-.. 29

People v. Tramunti, 29 N.Y.2d 28 (1971) 29

In Re Persico, 362 F. Supp. 713 (E.D.N.Y. BOOID vcisdriies 4,9

Raley v. Ohio, 360 U.S. 423 (1959) 00 28

Shillitani v. United States, 384 U.S. 364 (1966) oo... 23

Stevens v. Marks, 383 U.S. 234 {| ene 26, 28, 29, 30

Theriault v. United States, 481 F.2d 1193 (5th Cir.

1973) ... os 25

United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) ... 24

United States v. Calandra, USS. , 38 L. Ed.2d

i i, TT rt ELE SSI RA BT Rk 6, 11, 13

United States v. Dionisio, 410 U.S. 1 EOP ceatecu teem 12

United States v. Giordano, U.S. , No. 72-1057,

Oct. T. 1973 (May 13, 1974) .................. . 18

United States v. Handler, 476 F.2d 709 (2nd Cir. 1973) 23

United States v. Marra, 482 F.2d 1196 (2nd Cir. 1973) 23

United States v. Seale, 461 F.2d 345 (7th Cir. 1972) .... 25

United States v. Wilson, 488 F.2d 1231 (2nd Cir. 1973) 23

) gilitedar diodes cantatas tee CAE aah PORE a Sie EA CAD rar ld. ow Laban Nig Men ae Ba all a

7

|

iv

PAGE

In Re Vigorito, 368 F. Supp. 613 (E.D.N.Y. 1974),

appeal argued and pending, No. 74-1322 (2nd Cir.

1974) 4, 14,15

Ziearelli vy. Investigation Commission, 406 U.S. 472

(1972) 27

Statutes and Rules:

United States Constitution, Amendment IV ............--.- 3

United States Constitution, Amendment V .........-.-------- 3, 11

United States Constitution, Amendment VI ...........---- 3

Omnibus Crime Control and Safe Streets Act of 1968

[18 U.S.C. §§2510-2520] ... 3

Organized Crime Control Act of 1970 3

18 U.S.C. §2515 2, 6, 16, 17, 18, 19, 20, 23

18 U.S.C. §2516(1) 18

18 U.S.C. §2518(8) (d) -..--.. 9

18 U.S.C. $2518(10) (a) 17, 20

18 U.S.C. §3504 3

18 U.S.C. §3504(a) (1) -.. Bs 9

18 U.S.C. $6002 26, 27, 29

98 U.S.C. §1254(1) a 2

28 U.S.C. §1826(a) -. passim

28 U.S.C. §1826(b) : 25

98 U.S.C. §2101(e) -........------ 2. ii.

Federal Rule of Criminal Procedure 41(f) -.......-.---------- 3

Federal Rule of Criminal Procedure 42(a) -....-.-.-.--------- 25

Federal Rule of Criminal Procedure 42(b) -...3, 6, 23, 24, 25

Other Authorities:

1968 U.S. Code Cong. & Admin. News 20, 21

In THE

Supreme Court of the United States

Octoser Term, 1973

Nos.

ip

ALPHONSE PeEksIco,

Petitioner,

—_—V.—

Unitrep States oF AMERICA.

i

JeRRY LANGELLA,

Pet‘ tioner,

—_—V.——

Unirep States oF AMERICA.

=i

PLTITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT AND THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF NEW YORK

Opinious Below

The opinion of the United States Court of Appeals for

the Second Circuit affirming petitioner Persico’s adjudica-

tion of contempt is reported at 491 F.2d 1156 and is set

out in the Appendix, infra, at pp. la-l4a. The oral findings

of the district court (Judd, D.J.) adjudging Persico in con-

2

tempt are unreported and are set out in the Appendix,

cnfra, at 46a.

The oral findings of the district court (Dooling, D.J.)

adjudging petitioner Langella in contempt are unreported

and are set out in the Appendix, infra, at 5la-6da.

Jurisdiction

The judgment of the United States Court of Appeals for

the Second Circuit affirming petitioner Persico’s contempt

adjudication was entered on February 19, 1974. The juris-

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

The judgment of the United States District Court for

the Eastern District of New York adjudging petiiioner

Langella to be in contempt was entered on April 17, 1974.

A notice of appeal to the United States Court of Appeals

for the Second Circuit was filed on April 25, 1974. The

record was docketed in the Court of Appeals on May 13th,

1974. Certiorari is sought prior to judgment in the Court

of Appeals pursuant to 28 U.S.C. §2101(e). The jurisdic-

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

Questions Presented

(1) Is a grand jury witness entitled to litigate the legal-

ity of electronic surveillance in defense to a contempt cita-

tion, where it is conceded that the witness is being ques-

tioned as a result of electronic interception of his own

conversations?

(2) Is a grand jury contemnor entitled to a suppression

hearing to determine whether 18 U.S.C. $2515 has been vio-

3

lated by the disclosure of allegedly unlawful electronic

interceptions to that grand jury?

(3) Is a summary contempt adjudication under 28 U.S.C.

§1826(a) sufficiently criminal in nature so as to require

the notice and hearing provided for in Rule 42(b) of the

Federal Rules of Criminal Procedure?

(4) Was the explanation of the scope of the immunity

given by government counsel to petitioner Persico suff-

ciently incomplete so as to require vacating the order of

contempt?

Constitutional Provisions and St.:tutes Involved

These cases involve the Fourth, Fifth and Sixth Amend-

ments to the United States Constitution; Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 82

Stat. §211 [18 U.S.C. §§2510-2520]; the Organized Crime

Control Act of 1970, 84 Stat. §935 [specifically, 18 U.S.C.

§3504 and 28 U.S.C. §1826(a)}; 18 U.S.C. $6002, 84 Stat.

§927; and Rules 41(f) and 42(b) of the Federal Rules of

Criminal Procedure.

Statement of the Case

A. Persico

In the spring of 1973 an electronic surveillance device

was installed in Alphonse Persico’s home. As required by

18 U.S.C. §2518(8)(d), petitioner later received notice of

this surveillance.’ .

Petitioner commenced a civil action in the United States Dis-

trict Court for the Eastern District of New York in August 1973

to compel disclosure of the electronic surveillance and to suppress

ORT, UU Ee I a oe

4

Subsequently, in December 1973, petitioner was served

with a subpoena requiring him to appear before the Special

September 1972 grand jury in the Eastern District of New

York, returnable on January 23, 1974.’

On that date, Persico appeared and was sworn as a

witness. After asserting his Fifth Amendment privilege

not to testify, Persico was informed that immunity had

been conferred on him by order of the Honorable John

R. Bartels, U.S.D.J. on December 28, 1973 (19a, 23a).*

Persico then refused to answer on the ground that the

questions being put to him as well as his very presence as

a witness were the fruits of unlawful electronic surveillance

of his home. Persico specifically relied on 18 U.S.C. §2515,

Rule 41f, of the Federal Rules of Criminal Procedure, and

the opinion of the Honorable John F. Dooling, U.S.D.J.,

issued on January 2, 1974, in Jn re Vigorito, 368 F. Supp.

613 (E.D.N.Y.) (24a-25a).

The government acknowledged that electronic surveil-

lance devices had been installed at Persico’s home pur-

suant to a court order signed March 21, 1973 authorizing

interceptions for 15 days (38a). Extension orders were

its use against him. In a memorandum opinion, the Hon. ‘ohn F.

Dooling, U.S.D.J., held that the application was premature since

there was no anticipated use of the electronic surveillance which

could be ordered suppressed. See, Jn re Persico, 362 F. Supp. 713

(E.D.N.Y. 1973).

? Persico’s subpoena was originally returnable in December 1973

and was adjourned on Persico’s application until January 9, 1974.

On that date the grand jury did not obtain a quorum. Altheugh

Persico was not sworn as a Witness, the Honorable Orrin G. Judd,

U.S.D.J., heard Persico’s applications on that date.

’ Numbers designated “a” in parentheses refer to pages of the

Appendix, infra.

5

signed on April 9 and May 8, 1973, each authorizing inter-

ceptions for 15 days (38a).

Petitioner first declined to answer the following ques-

tion:

“Question: Mr. Persico are you employed” (27a) ?

The district court held that there was an insufficient

showing that the particular question was predicated upon

the surveillance of Persico’s home and therefore ordered

Persico to respond (28a-29a). Persico returned to the

grand jury and then answered all questions concerning his

lawful employment (30a-338a). After this series of ques-

tions Persico was asked:

“Question: Are you employed in any other occupa-

tion or do you own any business” (33a)?

Persico again refused to answer on the ground that the

questions relating to his employment were the fruits of

unlawful electroni¢ interceptions (33a). Government coun-

sel admitted that the proposed questions were based on

electronic surveillance:

“Mr. Del Grosso: There are questions that have

been formulated as a result of electronic surveillance

which will deal with his employment. Yes, that is true,

your Honor” (29a).

Persico then moved for production of the surveillance

orders and supporting affidavits for inspection so that

counsel could make a determination whether the witness

had “just cause,” within the meaning of 28 U.S.C. $1826

(a), to refuse to answer based on the facial invalidity

of the orders (34a-36a). The Court refused this relief

and instead examined the orders in camera, a procedure

which Persico contended was inadequate (40a-41la).

In part, the Court bottomed its action on the theory

that Gelbard v. United States, 408 U.S. 41 (1972), had been

limited by United States v. Calandra, US. , 38

L. ed.2d 561 (1974), thus rejecting Persico’s contention that

Calandra specifically exempted from its holding the statu-

tory remedy of $2515 and that the opinion therein was

bottomed exclusively on the Fourth Amendment. It then

denied Persico’s motion to suppress (41a).

Persico was ordered to return to the grand jury and

answer the question. This he did (41a). Persico answered

questions pertaining to his own gambling activities (42a).

He was then asked:

“Question: The question was, who were the indi-

viduals who worked for you” (42a) ?

Persico refused to answer this question on the ground

that he believed it derived from the unlawful electronic

surveillance of his home and on the ground that the im-

munity conferred, as explained, was not commensurate

with his Fifth Amendment privilege (43a-44a).

Persico was again brought before the district judge who

held him in contempt pursuant to 28 U.S.C. §1826(a) and

sentenced him to 60 days in jail. Counsel then moved for

a hearing puysuant to Rule 42(b) F.R. Cr. P. (46a). The

court ordered a hearing but remanded Persico (46a).

The court indicated that Persico could purge the contempt

before the expiration of the 60 days by answering (46a).

The court further directed that the contempt was being

imposed pursuant to 28 U.S.C. $1826(a).

7

On the following day, at a hearing, Persico attempted to

defend against the contempt citation by demonstrating

that the questions put to him were the fruits of unlawful

electronic surveiliance in violation of 18 U.S.C. $2515.

Persico again renewed his motion to suppress seeking pro-

duction of the surveillance orders and supporting papers.

The application was again denied as was Persico’s applica-

tion for bail pursuant to 28 U.S.C, §1826(b) (Sa-Ga). On

January 28, 1973, the United States Court of Appeals for

the Second Circuit denied Persico bail but directed that

Persico’s appeal be heard on an expedited basis (6a), which

it was on February 5, 1974.

On February 19, 1974, the Court of Appeals rendered its

opinion affirming the order of contempt and imprisonment

against Persico.

In March, 1974, applications for bail pending certiorari

were denied by both Mr. Justice Marshall and, following

referral to Mr. Justice Douglas, by the full court respec-

tively. See 39 L. ed.2d 868.

On March 12, 1974, following petitioner’s release from

custody, the Hon, Jacob Mishler, Chief United States

District Judge for the Eastern District of New York,

signed an order extending the life of the grand jury of

which Persico was adjudged to be in contempt.

It was this extended grand jury before which petitioner

Langella was subpoenaed to appear.

B. Langella

In April 1974, petitioner Langella was also served with

a subpoena, returnable April 17, 1974, also directing him

to appear before the Special September 1972 grand jury

in the Eastern District of New York. Following his en-

OT OG OR ES

PORES

+e we -—

8

trance into the grand jury and the administering of the

oath and the conferring of immunity, petitioner Langella

read the following statement to the grand jury:

“I believe that my voice has been recorded and that

this investigation and the questions that are to be

asked of me are based upon information obtained as

a result of the electronic interception of my conversa-

tions.

“IT, therefore, respectfully ask to be taken before a

District Court Judge to be advised whether my con-

versations have been electronically intercepted and, if

so, whether it is based upon a Court Order and Affi-

davit.

“IT respectfully request that a hearing be held pur-

suant to Title 18, United States Code, Section 2515 to

determine the validity of its execution.

“Upon’ information and belief, I believe that my

conversations have also been recorded by the State

of New York or the District Attorney's Office of New

County or the Police Department of the State

' New York. I believe that this investigation and

i: questions to be asked of ine are also based in full

or in part on that electronic interception.

“T, therefore, request that Tobe advised before a

District Court Judge as to whether or not such inter-

ception has taken place and, if so, 1 request that [| be

advised whether such interception was based on a

Court Order and, if so. 1 request that a hearing be

held to determine the validity of that Order and its

execution or, in the alternative. any such Order be

submitted to this Court for examination. T assert all

of these rights under the Kgan and the Ge/Lard eases”

(2la).

9

Thereafter, Langella, his counsel, and government coun-

sel appeared before Judge Dooling. Pursuant to 18 U.S.C.

§3504(a)(1) and this Court’s opinions in Gelbard and Egan

v. United States, 408 U.S. 41 (1972), Langella requested

the government to affirm or deny whether the questions to

be propounded to him were based upon electronic sur-

veillance.’ The government reluctantly conceded that

“some of the questions” would be (54a).

Following this admission by the government, counsel for

Langella requested Judge Dooling to examine, in camera,

the orders authorizing the surveillance of Langella. Al-

‘Unlike Persico, Langella was never formally served with an

inventory pursuant to TS U.S.C) $2518(8)(d), although the

government had attempted to do so (57a). However, in December

1972, Langella was subpoenaed to appear before a New York state

vrand jury. Langella couamenced an action in the New York state

courts to quash the state subpoena similar in nature to the motion

Which was the subject of Judee Dooline’s opinion in In Re Persico,

supra. Langella’s motion to quash was denied, Ilowever, the state

prosecutor admitted during argument on the motion to quash that

Langella’s voice had been jitercepted by a surveillance device

Which had been installed pursuant to a state court order. P. 7,

transeript of iroceedings on Motion to Quash in Langella v. New

York, —— N.Y.S.2d ——, No. 2558472 (Sup. Ct. N.Y. Dee. 19,

1972). Langella was eventually indicted for his refusal to answer

certain questions before the state grand jury. Motions to dismiss

that indictment on Gelbard grounds are now sub judice in the

New York State courts,

Duriny the course of the arguments below on Langella’s federal

contempt, it was revealed that questions were also to be propounded

to Langella in the federal vrand jury based upon his testimony

in the state grand jury. Thus, the federal prosecutor's statement

(O4a) that he was not intending to Guestion Langella on the hasis

of any state interceptions, while technically correct, was misleading.

If the questions propounded to Langella in the state grand jury

were admittedly based upon electronic eavesdropping and the

federal prosecutor intended to question “Langella in the federal

vrand jury on the basis of the state eranud Jury proceedings, it ean

hardly be contended that the fruits of a state interception were not

heing utilized before the federal grand jury.

10

though this procedure had been followed by Judge Judd in

the case of petitioner Persico, see 491 F.2d at 1158 (39a),

Judge Dooling declined to do so (58a). Counsel for Lan-

gella then raised a number of other legal objections to

the subpoena and the proposed grand jury questioning

which are not the subject of the instant petition. These

motions were also denied. Langella was then directed to

again appear before the grand jury, which he did (59a).

Upon his appearance before the grand jury. Langella re-

fused to testify on grounds relating to + «2: ied insuf-

ficieacy in the immunity granted. (This issue is not here

raised by Langeiia.) Motions to quash on this ground were

also denied and Langella again returned to the grand jury.

One hour later, Langella, his counsel and the govern-

ment prosecutor appeared before Judge -Dooling. The

government requested that Langella be cited for contempt

pursuant to 28 U.S.C. §1826(a) on the ground at Langella

had, ironically, refused to answer the following question:

“Do you know Alphonse Persico” (61a)?

Following the interposing of defenses other than those

related to electronic surveillance, Langella was adjudged

to be in contempt pursuant to 28 U.S.C. §1826(a) and

sentenced to imprisonment for the life of the grand jury.

Bail pending appeal was denied (65a). Petitioner Langella

is presently incarcerated.

11

Proceedings Below

On appeal to the United States Circuit of Appeals for

the Second Circuit, petitioner Persico’s adjudication of con-

tempt was affirmed.

Following Langella’s remand, he filed a Notice of Appeal

to the United States Court of Appeal for the Southern Cir-

cuit and timely docketed the record in that court. However,

since his arguments relating to unlawful electronic surveil-

lance are foreclosed by that circuit’s prior decision in the

case of petitioner Persico, Langella seeks review solely of

this question prior to judgment in the Court of Appeals

pursuant to 28 U.S.C. $2101(e).

In its opinion, the Court below coneeded that this Court’s

decisions in Gelbard and Egan permitted an immunized

grand jury witness to refuse to answer a question de-

rived from “concededly” unlawful electronic surveillance

and to defend against any contempt citation for such a

refusal. 491 I'.2d at 1160 (7a). However, relying princi-

pally upoa the concurring opinion of Mr. Justice White, in

Gelbard, the court below went on to hold that,

“ ... When, during grand jury proceedings, the govern-

ment does produce a court order the traditional no-

tion that the functioning of the grand jury system

should not be impeded or interrupted could prevail

at that time over the witness’s interest in exploring in

depth the validity of the surveillance.” 491 F.2d at

1160 (8a).

This conclusion, the court below asserted, was supported

by both the legislative history of 18 U.S.C. $2518(10) (a)

OTS I ED

12

as well as this court’s opinions in United States v. Calandra,

— US. —, 38 L. ed.2d 561 (1974) and United States

v. Dionisio, 410 U.S. 1 (1973).

The court below concluded that,

“ .. the refusal [to testify] would be permissible only

if there is any absence of a necessary court order or

if there is a concession from the government that the

surveillance was not in conformity with statutory re-

quirements or if there is a prior judicial adjudication

that the surveillance was unlawful.” 491 F.2d at 1162

(12a).

By reason of Judge Judd’s in camera inspection of the

orders, the court below reasoned the petitioner Persico

received “all that he was entitled to receive.” Id. Peti-

tioner Langella was not afforded even this minimal review

(58a).

The Court of Appeals also rejected Persico’s arguments

that a §1826(a) contempt is sufficiently criminal in nature

so as to require a notice and hearing pursuant to Rule 42

of the Federal Rules of Criminal Procedure and that the

immunity conferred upon him, as explained, was nut coex-

tensive with his Fifth Amendment privilege.

13

REASONS FOR GRANTING THE WRIT

I.

The decision below emasculates this Court’s decision

in Gelbard and Egan and is based upon misreadings of

the opinions in Calandra and Dionisio and the legislative

history of Chapter 119 of Title 18 of the United States

Code.

These cases present important issues concerning the

rights of a grand jury witness to refuse to answer ques-

tions based on unlawful electronic surveillance and the

scope of the witnesses rights to litigate the legality of such

surveillance.

The operable facts are not in dispute. Petitioners were

overheard by electronic eavesdropping devices and were

then subpoenaed before a grand jury and refused to answer

questions on the ground that the questions were the product

of unlawful electronic surveillance. The government has

conceded that the questions asked of petitioners resulted

from the electronic surveillance.

The legal contentions are also narrowly drawn. Peti-

tioners do not predicate their right to refuse to answer on

the Fourth Amendment. This Court’s decision in United

States v. Calandra, US. , 38 L. ed.2d 561 (1974),

has laid to rest the contention that the fruits of an unlawful

search and seizure, not involving unlawful electronic sur-

veillance, are inadmissible before a grand jury. However,

contrary to the conclusion of the courts below, Calandra

recognized and distinguished the statutory rights upon

which petitioners rely,

ie

‘

;

OSM SAN AOAPE OO E

14

“The dissent’s reliance on Gelbavd v. United States, 408

U.S. 41 (1972), is mispiaced. There, the Court con-

strued 18 U.S. § 2515, the evidentiary prohibition cf

Tit. III of the Omnibus Crime Control and Safe Streets

Act of 1968, 82 Stat. 211, as amended, 18 U.S.C. §§ 2510-

9520. It held that § 2515 could be invoked by a grand

jury witness as a defense to a contempt charge brought

for refusal to answer questions based on information

obtained from the witness’ communications alleged to

have been unlawfully intercepted through wiretapping

and electronic surveillance. The Court’s holding rested

exclusively on an interpretation of § 2515 and Tit. III,

which represented a congressional effort to afford spe-

cial safeguards against the unique problems posed by

misuse of wiretapping and electronic surveillance.

There was no indication, in either Gelbard or the legis-

lative history of Tit. III, that § 2215 was regarded as

a restatement of existing law. As Mr. Justice White

noted in his concurring opinion in Gelbard, § 2515 ‘un-

questionably works a change in the law with respect to

the rights of grand ju-y witnesses. . . 77 US. —-,

38 L. ed.zd 575-576 n. 11. (Emphasis added.)

Also not in issue here is the right of a grand jury

witness, who has not been held in contempt, to litigate the

legality of the electronic surveillance which forms the basis

for his questioning.’

$ Thus, governmental reliance on cases such as Cali vy. United

States, 464 F.2d 475 (Ist Cir. 1972) is misplaced. It should, how-

ever, be noted that relief short of a full-blown motion to suppress

has been accorded to pre-contempt erand jury witnesses. In In re

Vigorito, 365 F. Supp. 613 (E.D.N.Y.) (Memorandum and Order

of January 2, 1974, reconsideration denied January 14, 1974 and

January 30, 1974), appeal argued and pending, No. 74-1322 (2d

15

In contrast to these questions, the issue presented by this

petition is whether a grand jury witness, in contempt pro-

ceedings under 28 U.S.C. §1826(a), may defend on the

ground that the question put to him violated 18 U.S.C.

§2515 because it was the fruit of unlawful electronic sur-

veillance. More accurately, since that precise question was

answered affirmatively by this Court in Gelbard v. United

States, supra, the issue this Court should now decide is the

scope of the hearing which must be afforded a contemnor

to litigate the legality of the challenged surveillance.

This Court has already decided the predicate issue in

petitioners’ favor.

Gelbard involved two sets of petitioners in different fac-

tual postures. Gelbard had been adjudged in civil contempt

pursuant to 28 U.S.C. $1826 after refusing to answer ques-

tions which he contended were based on unlawful electronic

surveillance. Gelbard had been informed that the surveil-

lance was pursuant to court order. 408 U.S. at 44. He

sought an opportunity to challenge the legality of the inter-

ceptions, which was denied him. The Ninth Circuit affirmed

the order of civil contempt. This order was reversed by

this Court.

Cir. 1974), subpoenaed individuals were compelled to give voice

exemplars which the government intended to compare with elee-

tronic interceptions made pursuant to court order for the purpose

of establishing the identity of the voices intercepted. The witnesses

urged that the electronic surveillance was unlawful and moved to

suppress its use before the grand jury and for return of their

recorded conversations. Judge Dooling held that, while a full-

blown motion to suppress was not proper at that stage of the

proceeding, the government must disclose to counsel for the wit-

nesses the orders and supporting papers authorizing the inter-

ceptions.

ee ee od

16

Egan had been adjudged in civil contempt pursuant to

28 U.S.C. §1826 for refusing to answer questions, after

receiving transactional immunity, waichn she contended were

predicated on unlawful electronic surveillance. The govern-

ment refused to confirm or deny the existence of such elec-

tronic surveillance. The district court adjudged Egan in

contempt. The Third Circuit reversed this order. This

Court affirmed.

As phrased by this Court, the two main issues resolved

in Gelbard were:

“The question presented is whether grand jury wit-

nesses, in proceedings under 28 U.S.C. $1826(a) are

entitled to invoke this prohibition of $2515 as a defense

to contempt charges brought against them for re-

fusing to testify... . the Court of Appeals for the

Ninth Cireuit held that they are not entitled to do

so... The Third Circuit, en banc, reached the con-

trary conclusion ... We disagree with the Court of

Appeals for the Ninth Circuit and agree with the

Court of Appeals for the Third Circuit.” 408 U.S.

at 43-44.

The related issue was:

“ .. whether a showing that interrogation would be

based upon the illegal interception of the witness’

communications constitutes a showing of ‘just cause’

that precludes a finding of a contempt.” 408 U.S.

at 45.

This question likewise was answered in the affirmative.

In simplest terms, this Court decided in Gelbard that

18 U.S.C. §2515 prohibited the compulsion of testimony

pa .

17

before a grand jury where the questions were predicated

on unlawful electronic surveillance. Secondly, this Court

decided That if the questioning was based upon unlawful

electronic surveillance the witness had “just cause” to re-

fuse to answer and could not be held in contempt pur-

suant to 28 U.S.C. $1826(a). Third, it was held that 18

U.S.C. §2518(10)(a) does not permit the making of a mo-

tion to suppress evidence before a grand jury so as to

prevent indictment based on illegal electronic sv.cveillanee

or to dismiss an indictment predicated on illegal electronic

surveillance because grand juries are exempted from the

forums enumerated in $2518. “But it does not follow from

the asserted omission of grand jury proceedings from the

suppression provision that grand jury witnesses cannot

invoke §2515 as a defense in contempt proceedings under

28 U.S.C. §1826(a).” 408 U.S. at 59 (emphasis added).

This Court thus held that the remedy is to move to sup-

press in court, in defense to the contempt proceedings.

408 U.S. at 60-61.

When confronted with these questions the court below

advanced the novel position that if the electronic surveil-

lance was conducted pursuant to court order the witness

is without just cause to refuse to answer. 491 F.2d 1162

(12a). This position lacks any legal or logical foundation.

Section 2515 provides that evidence derived from inter-

cepted communications may not be received before any

grand jury “where the disclosure of that information

would be in violation of this chapter.” It is beyond ques-

tion that disclosure is violative of the statute if electronic

surveillance is unlawful either because it was not pur-

suant to court order or because the court order did not

comply with the requirements of the act. As this Court’s

18

recent decision in United States v. Giordano, U.S.

——, No. 72-1057, Oct. Term 1973 (May 13, 1974) demon-

strates only too weil, it would be ludicrous to suggest

that 42515 bars admission of one type of unlawful evi-

dence before the grand jury but not the other.

This view is supported by the holding in Gelbard, since

Gelbard himself had been informed that the electronic

surveillance was pursuant to court order, Thus, no pur-

pose would have been served by vacating the contempt

order as to Gelbard if the existence of a court order ter-

minated his right to litigate the legality of the electronic

surveillance.

The fallacy to be found in the contentions of the court

below is, it is respectfully submitted, amply answered

by this Court’s recent decision in United States v. Gior-

dano, supra. There, this Court held that court orders

authorizing electronic surveillance under Title III of

the Omnibus Crime Control and Safe Streets Act were

invalid because they had been procured upon the basis of

Department of Justice application authorizations which

were not executed in conformity with the provisions of

18 U.S.C. §2516(1). In light of Giordano, could it legit-

imately be contended, e.g., that the “Lindenbaum orders”

were attackable only by a defendant once an indictment

for a substantive offense had been returned against him

and not attackable by a contemnor whose grand jury sub-

poena and subsequently compelled testimony had been

obtained by the same invalid orders? It is too late in the

day to assert that $2515 bars admission of one form of

unlawful eavesdropping but not another.

19

Contrary to the opinion of the courts below, the legis-

lative history of $2515 reveals that Congress intended the

section to protect against invasion of privacy from un-

lawful electronic surveillance regardless of the nature of

the illegality:

“Section 2515 of the new chapter imposes an eviden-

tiary sanction lo compel compliance with the other

prohibitions of the chapter. \t provides that inter-

cepted wire or oral communications or evidence de-

rived therefrom may not be received in evidence in

any proceeding before any court, grand jury, depart-

ment, officer, agency, regulatory body, legislative com-

mittee, or other authority of the United States, a

State, or a political subdivision of a State, where the

disclosure of that information would be in violation

of this chapter. The provision must, of course, be read

in light of section 2518(10)(a) discussed below, which

defines the class entitled to make a motion to suppress.

It largely reflects existing law. Jt applies to suppress

evidence directly (Nardone vy. United States, 58 S. Ct.

275, 302 U.S. 379 (1937) or indirectly obte‘ned in

violation of the chapter. (Nardone v. United States,

60 S. Ct. 266, 308 U.S. 338 (1939).) There is, how-

ever, no intention to change the attenuation rule. See

Nardone vy. United States, 127 F.2d 521 (2d Cir.), certi-

orari denied, 62 8. Ct. 1296, 316 US. 698 (1942) ; Wong

Sun v. United States, 83 S. Ct. 407, 371 U.S. 471

(1963). Nor generally to press the scope of the sup-

pression rule beyond present search and seizure law.

See Walder v. United States, 74 S. Ct. 354, 347 U.S.

62 (1954). But it does apply across the board in both

Federal and State proceedings. Compare Schwartz v.

PET a Le

20

Texas, 73 S. Ct. 232, 344 U.S. 199 (1952). And is not

limited to criminal proceedings. Such a suppression

rule is necessary and proper to protect privacy. Com-

pare, Adams vy. Maryland, 74S. Ct. 442, 347 U.S. 179

(1954); Mapp v. Ohio, 81S. Ct. 1684, 367 U.S. 648

(1961). The provision thus forms an integral part of

the system of limitations designed to protect privacy.

Along with the criminal and civil remedies, it should

serve to guarantee that the standards of the new

chapter will sharply curtail the unlawful intercession

of wire and oral communications.” (Emphasis added.)

1968 U.S. Code Cong. & Admin. News, at 2184-2185.

It is unthinkable in light of the broad sweep of the stat-

ute’s language and the equally broad explanation of statu-

tory purpose in the legislative history, that Congress did

not intend the exclusionary rule of $2515 to apply where

interceptions were pursuant to court order,

The legislative history of $2518(10)(a)°® also supports

the view that the defense afforded by $2515 entails a full

motion to suppress:

“Paragraph (10)(a) provides that any aggrieved per-

sons, as defined in section 2510(11), discussed above,

in any trial hearing or other proceeding in or before

any court department, officer, agency, regulating body

or other authority of the United States, a State, or a

political subdivision of a State may make a motion to

®* Section 2515(10)(a) provides the procedural vehicle for the

defense contemplated by $2515 when a grand jury witness is held

in contempt for refusing to answer questions predicated on un-

lawful electronic surveillance. As noted in Gelbard, the two see-

tions must le read together. Thus, the seope of the motion to

suppress aVailable under $2515 is that embodied in $2518(10) (a).

21

suppress the contents of any intercepted wire or oral

communication or evidence derived therefrom. [ This

provision must be read in connection with sections 2515

and 2517, discussed above, which it limits. It provides

the remedy for the right created by section 2515.) Be-

cause no person is a party as such to a grand jury

proceeding, the provision does not envision the making

of a motion to suppress in the context of such a pro-

ceeding itself. Normally, there is no limitation on the

character of evidence that may be presented to a grand

jury, which is enforcible by an individual. (Blue vy.

United States, 86 S. Ct. 1416, 384 U.S. 251 (1965).)

There is no intent to change this general rule. It is the

intent of the provision only that when a motion to sup-

press is granted im another context, its scope may in-

clude vse in a future grand jury proceeding. Nor is

there any intent to grant jurisdiction to Federal courts

over the Congress itself. See Hicarst v. Black, 66 App.

D.C. 313, 87 F.2d 68 (1936). Otherwise, the scope of

the provision is intended to be comprehensive. [The

motion may be made on the ground that: (i) the com-

munication was unlawfully intercepted, (ii) the order

of authorization or approval is insufficient on its face.

or (ili) the interception was not made in conformity

with the order. The motion must be made before the

trial, hearing or proceeding unless there was no op-

portunity to make the motion or the person was not

aware of the grounds of the motion, for example, when

no notice was given under paragraph (9), discussed

above.j Care must be exercised to avoid having a de-

fendant defeat the right of appeal under paragraph

(b), discussed below, by waiting until trial. (Giacona

v. United States, 257 F. 450 (Sth), certiorari denied, 79

WNaeoy

22

S. Ct. 113, 358 U.S. 873 (1958).) Upon the filing of such

a motion to suppress, the court may make available

to the person or his counsel such portions of the inter-

cepted communications or evidence derived therefrom

as the court determines to be in the interest of justice.

This provision explicitly recognizes the propriety of

limiting access to intercepted communications or evi-

dence derived therefrom according to the exigencies

of the situation. The motion to suppress envisioned

by this paragraph should not be turned into a bill

of discovery by the defendant in order that he may

learn everything in the confidential files of the law

enforcement agency. Nor should the privacy of other

people be unduly invaded in the process of litigating

the propriety of the interception of an aggrieved per-

son’s communications. (Emphasis added.) 1968 U.S.

Code Cong. & Admin. News, at 2195.

The court below reasoned that a full motion to suppress

would interrupt the smooth functioning of the grand jury.

491 F.2d 1160-1161, n. 3 (Sa-9a). This objection lacks merit.

Once a witness has been held in contempt he is removed

from the stream of the grand jury’s proceedings. Absent

the opportunity to demonstrate his “just cause” the witness

may remain in custody without further contact with the

grand jury. Congress, however, by creating special legis-

lation more protective of the rights of privacy than the

Fourth Amendment, which privileges the grand jury wit-

ness to refuse to answer questions predicated on uulawful

electronic surveillance, insures that the witness without

a legitimate claim will more likely be returned to the stream

of the grand jury process than the witness who, under the

23

theory of the courts below may be left to languish in jail

during the life of the grand jury.

The essence of this Court’s opinion in Gelbard is that,

in defense to a contempt proceeding a witness may demon-

strate that he had * just cause” to refuse to answer because

the questions were predicated on unlawful elecironie sur-

veillance, in violation of the clear mandate of 18 U.S.C.

§2515, whether or not such surveillance was court ordered.

Petitioners were entitled to litigate the legality of the

surveillance to which they were subjected and, absent an

opportunity to do so, their refusals to answer do not con-

stitute contempt within the meaning of 18 U.S.C. §1826(a).

Il.

Certiorari should be granted because a conflict be-

tween the Circuits exists regarding the applicability of

Fed. R. Crim. P. 42(b) to an 18 U.S.C. §1826(a) con-

tempt proceeding.

These cases also raise the issue of whether proceedings

under 28 U.S.C. (1826(a) are “summary” or whether the

procedures embodied in Fed. R. Crim. P. 42(b) should

apply.

It is clear that Fed. R. Crim. P. 42(b) applies where a

witness is held in criminal contempt for an orderly refusal

to testify, either at a trial or before a grand jury. United

States v. Wilson, 488 F.2d 1231 (2d Cir. 1973); United

States v. Marra, 482 F.2d 1196 (2d Cir. 1973); United

States v. Handler, 476 F.2d 709 (2d Cir. 1973). The hall-

mark of such a contempt is a sentence, the purpose of which

is punitive rather than coercive, and cannot be purged.

Shillitani vy. United States, 384 U.S. 364 (1966).

24

Section 1826(a) authorizes “summary” commitments for

refusals to testify before a court or grand jury and the

imposition of coercive sentences. Thus, proceedings under

§1826(a) are in the nature of “civil” contempt, at least

for the purposes of sentencing.

However, contempt proceedings are particularly difficult

to characterize as wholly civil or wholly criminal for all

relevant purposes.

In United States v. Alter, 482 F.2d 1016 (9th Cir. 1973),

an immunized grand jury witness refused to answer ques-

tions on the ground that the questious derived from un-

lawful electronic surveillance of him or his attorney. The

government represented that there was no surveillance of

the witness but refused to respond to the inquiry about the

attorney. Upon the witness’ continued refusal to answer

he was cited for contempt pursuant to §1826(a). Forty-five

minutes later a hearing was held to determine whether the

witness should be held in contempt. The Ninth Circuit held

that this procedure was insufficient to permit the witness

adequately to prepare a defense. It reasoned that, for pur-

poses of the procedures to be followed, such a contempt was

the same as a criminal contempt so that the provisions of

Rule 42(b) were applicable:

“At the threshold of Gelbard, the Court said that see-

tion 1826(a) was ‘intended to codify the existing prac-

tice of the federal courts,’ citing portions of its legis-

lative history and Shillitani (408 U.S. at 42-48 n. 1, 92

S. Ct. at 2358). The unmistakable import of these ob-

servations is that section 1826(a) has no effect upon

the procedural ground rules the Court had laid in

cases anteceding that the enactment of the statute-rules

25

which expressly forbade summary proceedings for such

contempts. ... we conclude that a proceeding in con-

tempt to compel a federal grand jury witness to testify

is civil enough to foreclose his claim that he has a con-

stitutional right to trial by jury (Shillitani) and crimi-

nal enough to require the application of Rule 42(b)

(Harris), a conclusion we reached less elaborately in

United States v. Dinsio (9th Cir. 1972), 468 F.2d 1392.

It follows, therefore, that Alter was entitled to notice

prescribed by Rule 42(b) and to a reasonable time to

prepare his defense, i.e. to show ‘just cause’ for re-

fusing to respond.” 482 F.2d at 1022-1023.

In the instant cases, the petitioners were held in con-

tempt, denied bail and seized by the marshals immediately

upon their refusals to testify... Counsel objected to these

procedures, requesting a Rule 42(b) hearing (46a).

The only justification for “summary” contempt proceed-

ings is where the contempt is committed in the actual pres-

ence of the court and immediate action is necessary to

preserve the integrity of the court... Orderly refusals to

testify, whether before a court or grand jury, whether the

intended punishment be civil or criminal in nature, should

never be punished summarily. Compare, Mayberry vy. Penn-

sylvania, 400 U.S. 455 (1971). See also, Theriault v. United

* Although Persico’s applications for bail were denied by the dis-

trict court, the Second Circuit and this Court. Judge Dooling

denied Langella bail upon the erroneous assumption that a $1826

(a) contempt was not bailable. See, 2s ULS.C. $1826 (b).

* The conditions precedent to a finding ef “summary” contempt

as set forth in Fed. R. Crim. P. 42:4). See also, United States vy.

Seale, 461 F.2d 345, 366-367 (7th Cir. 1972).

| rc Be the

26

States, 481 F.2d 1193 (5th Cir. 1973). The basic components

of due process, notice and an opportunity to be heard, as

the Ninth Circuit has held, must be afforded before liberty

may be forfeited under such circumstances.

Since the conflict between the Ninth and Second Circuits

as to the applicability of Fed. R. Crim. P. 42 procedures

to §1826(a) contempts will cause disparate treatment

among contemnors, certiorari should be granted to resolve

this conflict.

Il.

The Court below disregarded the legal standard enun-

ciated in Stevens v. Marks, 383 U.S. 234 (1966) when

it reviewed petitioner Persico’s claim that the descrip-

tion of the immunity given to him by government coun-

sel was fataliy misleading.

18 U.S.C. $6002 (Pub. L. 91-452, Title IIT, §201(a), 84

Stat. 927), provides that the immunity conferred under

that section prohibits the “use” of that “testimony or other

information compelled under the order [of immunity] or

any information directly or indirectly derived from such

testimony or other information,” from being “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.” Td.

While $6002 confers “use” as opposed to “transactional”

immunity, nevertheless,

“The statute provides a sweeping proscription of any

use, direct or indirect, of the compelled testimony and

any information derived therefrom ... it imposes on

27

the prosecution the affirmative duty to prove that the

evidence it proposes to use is derived from a legitimate

source wholly independent of the compelled testimony.”

Kastigar y. United States, 406 U.S. 441, 460-61 (1972).

In Kastigar, this court upheld the constitutionality of

§6002 in the face of a claim that the “use” immunity granted

thereunder was not co-extensive with the privilege against

self-incrimination, the petitioner there claiming that the

Fifth Amendment required “transactional” immunity from

any prosecution related to the scope of the investigation.

In rejecting this claim, this Court, noted that prosecution

by a state sovereign was impeded only to the same extent

as the Federal government's use or derivative use of the

testimony. Aastigar, supra, at 406 U.S. 459 n. 49, citing

Gardner v. Broderick, 392 U.S. 273, 276 (1968). See also,

Zicarelli v. Investigation Commission, 406 U.S. 472 (1972).

During the course of the grand jury proceedings in this

case, governinent counsel explained to petitioner Persico

the protection afforded to him by the grant of immunity?

and its scope:

“This order states that it will give you immunity. By

this we mean, sir, you have [use] immunity. By that

I mean everything you say cannot be used against you

in a Court of law” (27a).

Subsequently, at a later time during the proceedings,

Persico requested that the scope of the protection afforded

him be explained:

“Copies of the immunity orders for the witnesses Persico and

Langella are set forth in the Appendix infra, at 19a and 20a.

to ae

eee ae ee ee ee GY

v WORE i he

“The Witness: About this immunity, how does this

affect me in any prosecution with federal or state

about questions asked here?

Mr. Del Grosso: Any testimony that you give here

today cannot be used against you in any federal or

state Court.

The Witness: Is that with the Internal Revenue and

everything?

Mr. Del Crosso: That’s right across the board. Any-

thing you say today cannot be used against you. If

the governiaent should show independent evidence;

that is, evidence independent of your testimony that

can be used, however, anything you say cannot be used

against you at any subsequent date that you may come

before this grand jury. Do you understand that?

The Witness: Yes” (31a-32a).

Despite petitioner’s (a layman) statement that he under-

stood what the prosecutor had said, the description of the

scope of the protection afforded was wholly deficient.

The Court below did not entirely disagree. Rather, after

characterizing the explanation as neither “the epitome of

either precision or lucidity,” 491 F.2d at 1163 (13a), it

nevertheless assumed that petitioner was “probably” suf-

ficiently apprised of the extent of the immunity he had

been granted because “experienced and competent counsel”

had challenged the insufficiency of the government’s ex-

planation before the district court. Jd. (13a). From this

it inferred that petitioner was not misled. This is hardly

the point, as this Court recognized in Stevens v. Marks,

383 U.S. 234 (1966). See also, Raley v. Ohio, 360 U.S.

423 (1959); Bursey v. United States, 466 F.2d 1059, 1081

Ph PEEL DOL IPE —-_

29

(9th Cir. 1972); People v. Masiello, 28 N.Y.2d 287 (1971);

People v. Tramunti, 29 N.Y.2d 28 (1971).

First, the prosecutor never explained that the grant of

immunity protected Persico not only from prosecution

based upon the testimony uttered itself, but also from the

utilization of the fruits of that testimony, its exploitation

and indirect use, in conformity with the “sweeping pro-

scription” actually afforded by $6002. Kastigar, supra;

Counselman v. Hitchcock, 142 U.S. 547 ( 1892).

Second, the prosecutor inaccurately informed the wit-

ness that it was merely his testimony that a state sovereign

was prohibited from using against him, rather than fully

explaining that the protection afforded him by §6002 from

state prosecution was only as broad as the “use” prohibi-

tion imposed upon the federal government.

Thus, the prosecutor failed to fully inform the petitioner

(1) as to the breadth of his protection from federal prose-

cution, and (2) as to the limits upon his protection from

state prosecution. Compare, Murphy v. Waterfront Com-

mission, 378 U.S. 52 (1964), in which the petitioners had

been granted transactional immunity.

Having thus misinformed petitioner as to the scope of

the immunity conferred, this Court’s decision in Stevens v.

Marks, supra, required the court below to vaeate the con-

tempt citation against Persico regardless of whether his

counsel may or may not have been misled.

In Stevens, a inember of the New York City Police De-

partment who had been subpoenaed to appear before a

state grand jury, signed a waiver of the privilege against

self-incrimination and of immunity from prosecution in

order to avoid removal froin public office. After consulting

OL inte re ym Od te a RAS

SE ihe RE RE YI Hr

30

with counsel, Stevens attempted to withdraw his waiver

in order to contest its validity and then refused to answer

questions before the grand jury, asserting his privilege

against self-incrimination. He was adjudged to be in con-

tempt. This Court, per Mr. Justice Douglas, reversed the

contempt convictions on the grounds, inter alia, that the

officer had erroneously been led to believe that no immunity

was available. The State of New York countered by con-

tending that what Stevens believed was immaterial since he

had obtained immunity by operation of law merely by

testifying. 383 U.S. at 244. The State further suggested

that the case be remanded to the New York courts for a

hearing as to whether Stevens was misled by the District

Attorney’s statements. In declining to remand, this Court

held:

“A witness has, we think, a constitutional right to stand

on the privilege against self-incrimination until it has

been fairly demonstrated to him that an immunity, as

broad in scope as the privilege it replaces is available

and applicable to him...

“The suggestion that we should remand the case

to the New York courts for a finding of whether or

not petitioner was misled is, we think, wide of the

mark. A State must affirmatively demonstrate to the

witness that a valid immunity from prosecution is his

before it may hold him in contempt for refusing to

answer questions that would otherwise be incriminat-

ing. Whether the State has met its burden must be

measured at the time of the alleged contempt.” 383

U.S. at 246 and n. 11.

This Court thus ruled that the petitioner’s state of mind

was irrelevant so long as at the time of the alleged con-

A cenit.)

==

4 31

tempt a deficient explanation of immunity had, as here,

been given by the prosecutor.

The court below totally ignored the standard of review

set forth in Stevens, although Stevens had been cited to it,

and, instead interposed its own subjective estimate, based

on Persico’s counsel’s “competency and experience,” that

Persico was “probably” not misled.

Certiorari should be granted and the decision below re-

versed so as to make clear the continuing validity of the

Stevens rule that when immunity is conferred it must be

described with “unmistakable clarity.” Bursey, supra.

CONCLUSION

For all of the foregoing reasons, certiorari should be

granted and the judgments below reversed.

Respectfully submitted,

Rosxer, Fisuer & Scrisner

401 Broadway

New York, New York 10013

(212) 925-8844

Attorneys for Petitioner, Persico

Gustave H. Newman

522 Fifth Avenue

New York, New York 10036

(212) MU 2-4066

Attorney for Petitioner, Langella

Of Counsel:

Nancy Rosyer

ALAN Scripner