
USCA1 Opinion

	




          January 11, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                      ____________________        No. 95-2338                                                 IN RE:                                     GRAND JURY.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Peter J. Stelzer on brief for appellant.            ________________            Donald K.  Stern, United  States Attorney,  and Jeffrey  Auerhahn,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Appellant grand jury witness  appeals                      __________            the district court order holding him in contempt for refusing            to   answer   questions   before   a   grand   jury.      The            witness/contemnor refused  to answer  on the ground  that the            question  violated his  rights under  the  fourth amendment.1            The  government  filed  a   petition  for  contempt  and  the            witness/contemnor responded  by filing a motion,  pursuant to            18 U.S.C.   3504, seeking that the government "affirm or deny            the existence  of any  and all electronic  surveillance which            may be used as a basis, direct or indirect, for any questions            to  be  put  to  the  witness."    After  hearing  in  camera                                                               __  ______            submissions  from   the  special  agent  in   charge  of  the            investigation concerning the source of the questions directed            to  the  witness, the  court held  the  witness had  no "just            cause" for  refusing to comply  with the  immunity order  and            held  him in  contempt.   The witness/contemnor  appeals this            contempt order.2  We affirm.                 A  grand jury  witness  who refuses  to testify  without            "just cause"  may be  held in  civil contempt.   18 U.S.C.               1826(a).   However, a showing that the questions addressed to            the  witness were  based on  illegal electronic  surveillance                                            ____________________            1.   This  court has  held that  the rights  of a  grand jury            witness  to  refuse  to  answer questions  based  on  illegal            surveillance "depend exclusively on [18 U.S.C.   3504]."   In                                                                       __            re Mintzer, 511 F.2d 471, 473 (1st Cir. 1974).            __________            2.   This court granted  the witness/contemnor's motion to be            released pending disposition of this appeal.            constitutes "just cause" for refusal to testify and precludes            a finding of contempt.  Gelbard v. United States, 408 U.S. 41                                    _______    _____________            (1972);  In  re  Doe, 988  F.2d  211,  213  (1st Cir.  1992).                     ___________            "[U]pon  a  claim  by  a  party  aggrieved  that  evidence is            inadmissible because  it is  [derived from an  illegal act],"            the government  must "affirm or  deny the  occurrence of  the            alleged unlawful act."   18 U.S.C.    3504; In re Grand  Jury                                                        _________________            Proceedings,  786 F.2d 3,  7 (1st Cir.  1986) (citing cases).            ___________            The  witness/contemnor contends that  the government  in this            case  failed  to  meet  its  burden   of  responding  to  the            allegation.   Alternatively, he  asserts  the district  court            erred  in hearing  testimony concerning  the  surveillance in                                                                       __            camera.            ______                 A "purely  conclusory denial"  that an  alleged unlawful            act occurred  is not an adequate response  to a   3504 claim.            In re Hodges, 524 F.2d 568, 570 (1st Cir. 1975).  Rather, the            ____________            government  must  show  "that  those  responding  were  in  a            position,  by   first  hand-knowledge  or   through  inquiry,            reasonably  to ascertain  whether  or  not  relevant  illegal            activities took place."  In re Quinn, 525  F.2d 222, 225 (1st                                     ___________            Cir. 1975).  Moreover, an adequate response "require[s] . . .            that those  conducting the grand jury  proceeding affirm that            they have  no knowledge of  and have not in  any way employed            other  taps [than  those  revealed] in  formulating lines  of            inquiry to be posed to the witness."  In re Mintzer, 511 F.2d                                                  _____________                                         -3-            471, 472 n.2 (1st Cir. 1974).  In other words, in an adequate            response  the government  provides  the court  access to  the            relevant   materials  supporting   all  wiretaps   which  the            government had or used concerning the witness.  Id. at 473.                                                              ___                 In  response  to  the      3504  claim,  the  government            presented  the sworn testimony of the case agent in charge of            the investigation that all the information obtained about the            witness/contemnor   which   was   derived   from   electronic            surveillance  came from  surveillance  pursuant to  a warrant            already revealed to  the district court.  The  district court            itself  affirmed  that it  had  previously  held the  warrant            lawful.   The agent also  swore that he  had been responsible            for  all communications  between  the  investigators and  the            prosecutor in this  case.  The  agent was thus in  a position            reasonably  to ascertain whether  any illegal  activities had            taken  place in  the investigation.   A  subsequent affidavit            requested  by this  court, see  Grand Jury v.  Gassiraro, 918                                       ___  __________     _________            F.2d  1013,  1016  (1st  Cir.  1990), and  submitted  by  the            attorney  in charge  of the  investigation,  see id.  at 1015                                                         ___ __            (finding  an affirmance  by  the  attorney investigating  and            formulating  the  questions   to  the  witness   particularly            significant) (citing cases), "put to rest any lingering doubt            we had  about the adequacy of [the] response," In re Tse, 748                                                           _________            F.2d 722, 728 (1st Cir. 1984) (footnote omitted).                                          -4-                 Nor  do we find any error in the district court decision            to  hear  sworn  testimony  concerning  the  surveillance  in                                                                       __            camera.     The  district   court  has  wide   discretion  in            ______            determining whether  or  not  to  withhold  the  government's            submissions concerning  other surveillance from a witness who            raises a    3504 claim,  In re Doe, 988  F.2d at 214 n.3, and                                     _________            similar  in camera  submissions  have been  approved by  this                     __ ______            court, see, e.g., id.; In re Grand Jury Proceedings, 786 F.2d                   ___  ___   __   ____________________________            at 7.  Having reviewed  the submissions, we find no abuse  of            discretion in this case.                 The contempt order is affirmed.                                       ________                                         -5-
