In Re Grand Jury Investigation, Liberato J. Maratea, a Witness. Appeal of Liberato J. Maratea, a Witness , 444 F.2d 499 ( 1971 )

OPINION OF THE COURT

PER CURIAM:

On December 2, 1970, appellant was called as a witness before the United States Grand Jury in the Eastern District of Pennsylvania which was conducting an investigation of possible violations of 18 U.S.C. § 1952 (1964), as amended, 18 U.S.C. § 1952(b) (Supp. V, 1970) (interstate and foreign travel or transportation in aid of racketeering enterprises). He refused to answer questions relating to the investigation, asserting his privilege against self-incrimination. After appropriate notice and hearing, on January 25, 1971, the district court entered an order pursuant to 18 U.S.C. § 2514 (Supp. V, 1970) granting appellant transactional immunity from prosecution, and directing him to appear before the Grand Jury, answer all questions propounded to him relating to the investigation and produce any books, papers, or other evidence requested. On January 27, 1971, appellant appeared before the Grand Jury and refused to answer certain questions on the ground that to do so would place his life and security in grave danger from persons who had threatened him. Following this refusal, on due notice a hearing was held which resulted in an order adjudging appellant in civil contempt and directing his imprisonment until he purged himself of contempt by testifying. From that order this appeal is taken.

At the hearing on contempt counsel for appellant called to the district court’s attention that the Grand Jury’s investigation followed and resulted from extensive electronic surveillance conducted by government agents pursuant to court order. No motion for suppression was made pursuant to Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(10) (Supp. V, 1970), appellant’s then counsel being of the view that a grand jury witness lacked standing to make such a motion in the Grand Jury proceeding.¹ On appeal appellant contends that the contempt order should be reversed and the case remanded for a hearing, prior to an adjudication of civil contempt, on the validity of the order permitting electronic surveillance. Appellant contends, further, that if the surveillance was illegal he should be privileged not to testify before the Grand Jury about the contents of any intercepted communication or any evidence derived therefrom.

Appellant’s view of the applicability of 18 U.S.C. § 2515 to grand jury witnesses has been accepted by this court. In the Matter of Joques Egan No. 71-1088 (filed May 28, 1971). The district court must, before adjudging a grand jury witness in civil contempt, afford to that witness a hearing on his contention that he is privileged not to testify because his testimony would constitute a disclosure by the Government of the contents pr fruits of illegal electronic surveillance directed against him. Even though appellant’s counsel, in mistaken reliance on Carter v. United States, supra, may have waived such a hearing, such a waiver may not be relied upon to give validity to the ongoing coercive effect of the civil confinement order.

The order adjudging appellant in civil contempt and directing his imprisonment will be vacated and the cause remanded to the district court for further proceedings consistent with this opinion. The mandate will issue forthwith.

1 . Appellant’s counsel referred to Carter v. United States, 417 F.2d 384 (9 Cir. 1969), cert. denied 399 U.S. 935, 90 S.Ct. 2253, 26 L.Ed.2d 807 (1970) (Tr. 12). Later lie said:

“My position would be this :

I do not at this point allege that these wire taps and that this information has been secured in an illegal manner, and it being so any inquiry by the grand jury and any immunity and attempt to gain testimony from Mr. Maratea is based upon — is illegal.” (Emphasis supplied.) (Tr. 15.)

“What I was getting at, Your Honor, and I think Your Honor can appreciate my argument, is that I stand — at least at this point, if I were to go to trial in defending an individual indicted in this case indicating to the Court that I would wish to challenge the admissibility of the evidence on the basis of its legality [sic]. Of course, this is a different situation. This is only in the grand jury stage, and there is no provision by which defense attorneys can challenge the evidence or the testimony or any information that the U. S. Attorney may have in presenting to the grand jury.” (Tr. 16-17.)