
USCA1 Opinion

	




          March 25, 1993      Opinion   92-1906   has   been  reissued   as                              PUBLISHED as of 3/25/93.          November 4, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1906                                        IN RE: GRAND JURY PROCEEDINGS                                      JOHN DOE,                                      Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Robert  L.  Sheketoff and  Sheketoff  & Homan  on  brief for               _____________________      __________________          appellant.               A. John  Pappalardo,  United  States  Attorney,  Michael  J.               ___________________                              ___________          Tuteur and Ernest S.  Dinisco, Assistant United States Attorneys,          ______     __________________          on brief for appellee.                                  __________________                                 __________________                       Per Curiam.   Agents of the  federal government, in                      __________            the   course   of   conducting  court-authorized   electronic            surveillance  during  a  criminal investigation,  intercepted            communications which involved  the appellant.   The appellant            later  was called  to  testify before  a  federal grand  jury            sitting in the District  of Massachusetts.  He refused  to do            so,  citing  his  Fifth  Amendment  privilege  against  self-            incrimination.   The  government applied  for and  received a            court  order   directing   the  appellant   to  testify   and            prohibiting the  government from  using his testimony  or its            fruits  against him in a criminal prosecution.  The appellant            still refused to testify.     The  government petitioned  for            an  order holding the appellant in civil contempt.  28 U.S.C.              1826(a).   It supported its petition  with affidavits which            said  that the  questions  it intended  to ask  the appellant            before  the  grand jury  would be  derived  in part  from the            electronic surveillance mentioned above.  The appellant  then            filed a  "Motion for  Disclosure  of Electronic  Surveillance            Information" which asked the court to instruct the government            to disclose certain information  relevant to the government's            request for permission to conduct that surveillance.                  Invoking the  need for  secrecy to protect  the ongoing            grand  jury  investigation,  the  government   produced  only            abridged  copies  of  the  documents requested.    The  court            conducted  a  contempt hearing  at  which  it  ruled  on  the            adequacy of  the government's response.   Before the hearing,            the district  judge had reviewed and  compared the expurgated            and  unexpurgated versions of the documents.  At the hearing,            the judge ruled (a) that the government had "an obligation to            preserve the secrecy of the grand jury," (b) that he  did not            see  anything in the deleted material "that could be of value            to  [the  appellant],"  and  (c)  that  after  reviewing  the            unabridged  documents he  had  concluded  that the  appellant            "does not have any  basis, that I can  see, to challenge  the            validity   and   constitutionality    of   the    [electronic            surveillance]."  The court  ordered the appellant to testify,            and when he again refused, judged him in contempt.  An appeal            followed.1                                          I                                          _                 A  grand jury  witness  who refuses  to testify  without            "just  cause" may  be  held in  civil contempt,  and confined            until he agrees to  testify, or, if he persists  in refusing,            for the life of the court proceeding or the term of the grand                                            ____________________            1.   The district court issued the contempt order on July 14,            1992,  and  the appellant  immediately  filed  his notice  of            appeal. This court docketed  that appeal as No. 92-1859.   On            July  17,   however,  the   appellant  filed  a   motion  for            reconsideration in the district court.  "[T]he filing of such            a motion  automatically cancels the effect  of having earlier            filed a notice  of appeal."  In re Public  Service Co. of New                                         ________________________________            Hampshire, 898 F.2d 1, 3 (1st Cir. 1990).  See also Griggs v.            _________                                  ________ ______            Provident  Consumer  Discount Co.,  459  U.S.  56, 61  (1982)            _________________________________            (effect  of Rule  59  motion on  previously  filed notice  of            appeal    is    that    "appeal   simply    self-destructs").            Consequently,  the appellant voluntarily dismissed appeal No.            92-1859   and  filed  this  appeal.     He  also  waived  the            requirement  that  recalcitrant  witness  appeals  be decided            within 30 days of the district court's contempt order.                                         -4-            jury, but in no event longer than eighteen months.  18 U.S.C.              1826(a).  A showing  that the questions put to  the witness            were  based on  illegal  electronic surveillance  constitutes            "just  cause"  for his  refusal  to testify  and  precludes a            finding of contempt.   Gelbard v. United States, 408  U.S. 41                                   _______    _____________            (1972); Grand Jury v. Gassiraro, 918 F.2d 1013, 1014 n.1 (1st                    __________    _________            Cir.  1990)  (per  curiam).    Thus,  although  18  U.S.C.               2518(10)(a) "gives  no standing  to a prospective  grand jury            witness  to be heard  on a motion to  suppress,   2515 allows            such  a  witness  to   assert,  in  defense  of   a  contempt            proceeding, the grounds enumerated in   2518(10)(a)(i), (ii),            and (iii)."   In re  Lochiatto, 497 F.2d  803, 806  (1st Cir.                          ________________            1974).2                 The witness' right to assert these defenses, however, is            not unqualified.  In particular, the availability of defenses            challenging the legality of the electronic  surveillance does            not  imply "unconditional  accessibility  to all  facts which            ___            might be relevant. . . ."  Id. at 807.  The documents used to                                       ___            obtain  an  "intercept"  order,  the order  itself,  and  the            documents   reflecting   the   results   of   the  electronic            surveillance,  may  contain  "sensitive material"  which,  if                                            ____________________            2.   Under 18 U.S.C.   2518(10)(a), an "aggrieved person" may            challenge an  intercepted wire  or oral communication  on the            grounds   that   (i)   the   communication   was   unlawfully            intercepted, (ii)  the  order of  authorization  or  approval            under  which it was intercepted is  insufficient on its face,            and  (iii) the interception  was not made  in conformity with            the order of authorization or approval.                                         -5-            disclosed,  would  threaten   the  safety  of  witnesses   or            otherwise  impede   the   grand  jury   proceedings  or   the            government's investigation.  Id.                                          ___                 In order to achieve the "triple objective" of minimizing            delay,  securing the  government's interest  in  secrecy, and            protecting  the  witness'  right   to  assert  his  statutory            defenses, in  Lochiatto we  established the  following ground                          _________            rules.    First,  if  the government  does  not  object "upon            grounds of harm  due to  breach of secrecy,"  the witness  is            entitled to  inspect these limited  materials: the authorized            application  of the  Attorney  General or  his designate,  18            U.S.C.   2516(1), the affidavits  in support of the intercept            order, the order  itself, and an  affidavit submitted by  the            government indicating the length of time the surveillance was            conducted.  Id.  at 808.   No evidence need  be provided  the                        ___            defendant  for the purpose of  litigating the issues of truth            of  statements  made by  affiants  or  the "minimization"  of            federal officials in monitoring conversations.  Id.                                                            ___                 Second, if  the government does object  to production on                                            ____            secrecy grounds,  the district  court must  determine whether            the  secret  information  can  be  "successfully  deleted  or            summarized  and  access to  the excerpted  material granted."            Id.   If  the  district court  decides that  "so much  of the            ___            material is of a  sensitive nature that revelation of  any of            it would prejudice the government, the court must then review                                         -6-            the material  in camera  to determine the  constitutional and            statutory  validity of  the application  and the  court order            based on the warrants, and  compliance by the government with            the court ordered  time limits  on surveillance."   Id.   The                                                                ___            district court  has "wide  discretion" in implementing  these            procedures.                 In this case,  the district court gave the appellant all            the protection that Lochiatto requires.  It  first ruled that                                _________            the  appellant  "probably  did not  miss  too  much  from the            redacted to the unredacted,  except . . . names  and places."            We see no  abuse of discretion in this conclusion,  or in the            district  court's decision  not to  "summarize"  the redacted            material for the appellant.                 At   that  point,   having  decided   that  the   secret            information could be "successfully" deleted (that is, deleted            without  destroying  the appellant's  ability  effectively to            prepare  a  defense),  the  court might  have  concluded  its            discussion, leaving  it to  the appellant  to  frame his  own            challenges to  the legality  of the electronic  surveillance.            Instead, the  district judge  went on to  perform the  latter            half of the  Lochiatto analysis, saying that  he had reviewed                         _________            the unabridged documents in camera, and that                                     _________                 [t]he  Attorney  General's  authorization has  been                 provided.    The justification  has  been provided.                 The affidavit  has  been  provided.  . .  .    [The                 appellant] does not have any basis, that I can see,                 to  challenge the validity and constitutionality of                 the  process.    The  electronic  surveillance  was                                         -7-                 conducted  pursuant  to  a  court   order  and  was                 authorized.     That  is  not  a   basis  for  [the                 appellant] to refuse to testify.                 We can find no fault with this conjunctive approach.  It            provided  the appellant  with an  added layer  of protection,            assuring him that the district court had reviewed the deleted            material  with his  statutory  defenses in  mind.   Where, as            here,   the   deletions   were  fairly   extensive   if   not            qualitatively significant, the court's caution  was laudable,            and certainly not abusive of its wide discretion.3                                          II                                          __                 After the district court  issued its contempt order, the            appellant  filed   a  notice   of  appeal,  then   moved  for            reconsideration in  the district court.   At the government's            urging, the  district court denied  the motion on  the ground            that the filing of the appeal had divested it of jurisdiction                                            ____________________            3.   The  appellant's brief  focuses on the  district court's            decision to withhold  the government's affidavits "concerning            the  existence of other surveillances."  It is true that when            a  witness  challenges  the  legality  of  the   government's            electronic surveillance, the government  must "affirm or deny            the  occurrence of  the alleged  unlawful act,"  18 U.S.C.               3504, and include in its response "an explicit assurance that            all agencies  providing information  relevant to the  inquiry            were canvassed."   In re Quinn,  525 F.2d 222, 226  (1st Cir.                               ___________            1975).  The appellant contends that the district court should            not have  withheld the affidavits  containing this assurance.            We  have examined  the  materials in  question: they  contain            potentially-sensitive  information about the nature and scope            of the  government's investigation,  and we therefore  see no            abuse  of  discretion in  the  district  court's decision  to            examine  them  in  camera.    We  find,  moreover,  that  the                           __________            affidavits gave the necessary assurance and adequately showed            that the grand jury  questions put to the appellant  were not            derived from any other electronic surveillance source.                                          -8-            to  reconsider  the  contempt  order.    The  government  now            concedes  that this position  was mistaken.   But, whether or            not the  district court should  have addressed the  motion on                                    ______            its merits, we need  not remand now for it to do  so: we have            considered the issues raised  in the motion and find  them to            be of no aid to the appellant's cause.                 The  motion  to  reconsider  contained  two  substantive            challenges to the  legality of  the electronic  surveillance.            Both  concerned  the   memoranda  through  which  responsible            officials   of  the  Justice  Department  authorized  federal            prosecutors in  the field  to apply for  an intercept  order.            The record contains three such memoranda, one authorizing the            initial   application   and   two    authorizing   successive            applications for  extensions of  the order.   Each memorandum            went  out under  the  name of  Robert Mueller,  the Assistant            Attorney General in charge of the Criminal Division, and each            contained  a  line  for  Mr. Mueller's  signature,  but  each            memorandum was in fact signed by a different Deputy Assistant            Attorney  General  in the  Criminal  Division:  the first  by            Robert Bucknam, the second by Mark Richmond, the last by John            Keeney.                 Out  of this  clay the  appellant molded  his arguments.            First, he contended  that the judge who  issued the intercept            order and its extensions  "was misled as to the  official who            authorized  the  application[s]"  because  the  authorization                                         -9-            memoranda "purported" to  be from Assistant Attorney  General            Mueller,  but  were in  fact  signed  by  the various  Deputy            Assistants.    Second, he  noted  that  18 U.S.C.     2516(1)            empowers   only  those   Deputy  Assistants  who   have  been            "specially designated by the  Attorney General" to  authorize            applications for  intercept orders.   The  Attorney General's            designation order under which  these Deputy Assistants acted,            No. 1348-89, named no names  and instead designated by  title            "any  Deputy  Assistant  Attorney  General  of  the  Criminal            Division."   Because the  order thus designated  every Deputy                                                             _____            Assistant in  the Criminal  Division, the appellant  said, it            failed to "specially designate" any particular individual.                 We  recently affirmed  the validity  of a  structurally-            identical  authorization memorandum.    In  United States  v.                                                        _____________            Citro,  938  F.2d 1431  (1st  Cir.  1991), the  authorization            _____            memorandum,  like  the memoranda  at  issue  here, carried  a            signature line  for the Assistant Attorney  General in charge            of the Criminal Division,  but actually was signed by  one of            his Deputy Assistants, who  had been identified by  title but            not   by  name   in  the   then-current  Attorney   General's            designation order.  Id. at 1435.                                ___                 In Citro, we  rejected the  appellant's contention  that                    _____            designation by title rather than name was insufficient:                 Section 2516(1)  does not state  that the  Attorney                 General   must   designate   officials   by   name.                 Identification by position  is entirely  consistent                 with the legislative  history, which indicates that                                         -10-                 the  purpose  of the  statute  was  to ensure  that                 intrusive  electronic  eavesdropping be  authorized                 only by  a  limited group  of  responsible  federal                 officials.   The statute requires that  each of the                 officials  be able  to  trace his  or her  explicit                 authority, by designation, to the Attorney General,                 an   official  who,   by  virtue   of  presidential                 appointment  and  Senate confirmation,  is publicly                 responsible  and subject to  the political process.                 The  statutory  limitations  allow the  responsible                 persons to be  identified and encourage consistency                 in   the   policy   with   which   the   electronic                 surveillance power is used.  The Attorney General's                 designation of  individuals by title  is sufficient                 to    ensure    the   goals    of   accountability,                 identification and consistency.   We see no  reason                 to  construe  the  statute  to  impose a  technical                 requirement  that the individuals  be designated by                 name   provided   their   identities  are   clearly                 ascertainable at any given time.            Id.  at 1435-36 (citations omitted).   See also United States            ___                                    ________ _____________            v. Torres, 908 F.2d 1417, 1422 (9th Cir. 1990); United States               ______                                       _____________            v.  Pellicci, 504  F.2d  1106,  1107  (1st  Cir.  1974)  (per                ________            curiam).                 In Citro  we  did  not say  in  so many  words  that  an                    _____            authorization memorandum  is valid when it  contains an empty            signature line  for the  Assistant Attorney General  but goes            out over the signature of a Deputy Assistant.  Such a ruling,            however,  was  implicit in  our  general  endorsement of  the            authorization  memorandum.  In the case at hand, at any rate,            we  find no  fault in  the arrangement  of signatures  on the            authorization memoranda.   The district judge  who issued the            intercept  order  and  its  extensions could  not  have  been            "misled" in any  material sense by the presence  of Assistant            Attorney General Mueller's  printed name under the  signature                                         -11-            line.   The signatures  on the memoranda  correctly reflected            the  identities   of  the  persons  who   actually  gave  the            authorizations (i.e., Deputy  Assistants Bucknam, Richard and            Keeney)  -- each of whom had the  statutory power to do so by            virtue of the Attorney  General's "special designation."  Cf.                                                                      ___            United  States v.  Chavez,  416 U.S.  562 (1974)  (failure to            ______________     ______            correctly  identify person  authorizing application  does not            render  electronic  surveillance  illegal  where  person  who            actually authorized application had power to do so).                 The judgment of contempt is affirmed.                                             ________                                         -12-
