USCA1 Opinion

March 25, 1993

Opinion
92-1906
has
PUBLISHED as of 3/25/93.

been

reissued

as

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.
__________
the

course

surveillance

of
during

Agents of the

conducting
a

federal government, in

court-authorized

electronic

criminal investigation,

intercepted

communications which involved

the appellant.

The appellant

later

was called

to

testify before

sitting in the District

of Massachusetts.

so,

Amendment

citing

his

incrimination.
court

The

order

the

He refused

to do

against

for and

appellant

government from

to

received a

using his testimony

The

said
before

the

questions

grand jury

it intended
would be

"Motion for

to ask

derived

Disclosure

for

28 U.S.C.

with affidavits which

electronic surveillance mentioned above.

filed a

or its

government petitioned

It supported its petition

that the

and

The appellant

order holding the appellant in civil contempt.

1826(a).

self-

testify

against him in a criminal prosecution.

still refused to testify.

an

jury

privilege

government applied

directing

prohibiting the
fruits

Fifth

federal grand

the appellant

in part

from the

The appellant

of Electronic

then

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
grand

jury

abridged

investigation,

copies

conducted
adequacy of

need for

of

the

secrecy to protect
the

government

documents requested.

contempt hearing

at

which

the government's response.

it

the ongoing

produced
The
ruled

only
court

on

the

Before the hearing,

the district
and

judge had reviewed and

compared the expurgated

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
see
to

did not

anything in the deleted material "that could be of value

[the

appellant],"

unabridged

documents he

"does not have any

validity

and

and

surveillance]."

(c)

had

that

concluded

basis, that I can

constitutionality
The court

after

reviewing

that the

appellant

see, to challenge
of

the

the

the

[electronic

ordered the appellant to testify,

and when he again refused, judged him in contempt.

An appeal

followed.1
I
_
A
"just

grand jury
cause" may

witness
be

until he agrees to

who refuses

held in

to testify

without

civil contempt,

and confined

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.

1826(a).

A showing

were

based on

"just

cause"

illegal
for his

finding of contempt.

18 U.S.C.

that the questions put to

the witness

electronic surveillance

constitutes

refusal

to testify

and

precludes a

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).

2518(10)(a) "gives

no standing

witness

to be heard

such

witness

to

Thus,

although

in

suppress,
defense

proceeding, the grounds enumerated in

and (iii)."
1974).2

U.S.C.

to a prospective

on a motion to
assert,

18

In re Lochiatto, 497 F.2d

________________

of

grand jury
2515 allows
a

contempt

2518(10)(a)(i), (ii),
803, 806

(1st Cir.

The witness' right to assert these defenses, however, is

not unqualified.

In particular, the availability of defenses

challenging the legality of the electronic

not
___

imply "unconditional

accessibility

might be relevant. . . ."

obtain

an

documents

Id. at 807.
___

"intercept"

order,

reflecting

the

surveillance,

may

contain

surveillance does
to all

facts which

The documents used to

the order
results

itself,

of

the

"sensitive material"

and

the

electronic
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

otherwise

impede

threaten
the

the

grand

government's investigation.

safety
jury

of

witnesses

proceedings

or

or
the

Id.
___

In order to achieve the "triple objective" of minimizing

delay,

securing the

protecting

the

defenses, in
rules.

government's interest

witness'

right

Lochiatto we
_________

First,

grounds of harm

if

to

inspect these limited

application

of the

Attorney

order, the order

statutory

following ground

does

not

object "upon

the witness

is

materials: the authorized

General or

2516(1), the affidavits

secrecy, and
his

breach of secrecy,"

entitled to

U.S.C.

assert

established the

the government

due to

in

his designate,

18

in support of the intercept

itself, and an

affidavit submitted by

the

government indicating the length of time the surveillance was

conducted.

Id.
___

defendant
of

at 808.

No evidence need

for the purpose of

statements

made by

be provided

litigating the issues of truth

affiants

or

the "minimization"

federal officials in monitoring conversations.

Second, if

the government does object

____

secrecy grounds,
the

secret

summarized
Id.
___

If

the district

information
and

the

access to

can

material is of a

court must
be

decides that

of

Id.
___

to production on
determine whether

"successfully

the excerpted

district court

the

deleted

or

material granted."
"so much

of the

sensitive nature that revelation of

any of

it would prejudice the government, the court must then review

-6-

the material
statutory

in camera

validity of

to determine the
the application

based on the warrants, and

the court ordered
district court

and the

court order

compliance by the government with

time limits

has "wide

constitutional and

on surveillance."

Id.
___

The

discretion" in implementing

these

procedures.
In this case,

the district court gave the appellant all

the protection that Lochiatto requires.

_________
the

appellant

"probably

did not

redacted to the unredacted,

We see no

miss

It

first ruled that

too

except . . . names

much

and places."

abuse of discretion in this conclusion,

district

court's decision

not to

"summarize"

from the

or in the

the redacted

material for the appellant.

At

that

point,

having

decided

that

the

secret

information could be "successfully" deleted (that is, deleted

without

destroying

prepare

defense),

discussion, leaving

the appellant's
the
it to

challenges to

the legality

Instead, the

district judge

ability

court might
the appellant

have

concluded

its

to

frame his

own

of the electronic
went on to

effectively to

surveillance.

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

authorized.
That is not a
appellant] to refuse to testify.

order and was

basis for [the

We can find no fault with this conjunctive approach.

provided

the appellant

with an

added layer

It

of protection,

assuring him that the district court had reviewed the deleted
material
here,

with his
the

statutory

deletions

defenses in

were

fairly

mind.

extensive

qualitatively significant, the court's caution

Where, as
if

not

was laudable,

and certainly not abusive of its wide discretion.3

II
__
After the district court
appellant

filed

notice

issued its contempt order, the

of

appeal,

then

moved

for

reconsideration in
urging, the

the district court.

district court denied

At the government's

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

concedes

that this position

not the

district court should

______

order.

The

was mistaken.

government

now

But, whether or

have addressed the

motion on

its merits, we need

not remand now for it to do

considered the issues raised

so: we have

in the motion and find

them to

be of no aid to the appellant's cause.

The

motion

to

challenges to the
Both

concerned

officials

of

reconsider

legality of
the

Justice

the field

two

the electronic

memoranda

the

prosecutors in

contained

through

Department

to apply for

substantive
surveillance.

which

responsible

authorized

federal

an intercept

order.

The record contains three such memoranda, one authorizing the

initial

application

applications for
went

out under

and

two

extensions of
the

name of

authorizing
the order.

successive

Each memorandum

Robert Mueller,

the Assistant

Attorney General in charge of the Criminal Division, and each

contained

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

First, he contended

that the judge who

order and its extensions

authorized

the

appellant molded

issued the intercept

"was misled as to the

application[s]"

-9-

because

his arguments.

the

official who
authorization

memoranda "purported" to
Mueller,

but

were in

Assistants.
empowers

be from Assistant Attorney

fact

Second, he
only

those

signed

noted
Deputy

"specially designated by the

applications for

Deputy

Division."

Assistant

Assistant in

Deputy

18 U.S.C.

Assistants

2516(1)

who

have

The

authorize

Attorney General's

and instead designated by

General

of

the

order thus designated

the Criminal

been

these Deputy Assistants acted,

Attorney

Because the

the various

Attorney General" to

designation order under which

"any

that

intercept orders.

No. 1348-89, named no names

by

General

title

Criminal

every Deputy
_____

Division, the appellant

said, it

failed to "specially designate" any particular individual.

We

recently affirmed

identical
Citro,
_____

authorization memorandum.

938

memorandum,

F.2d 1431
like

signature line

(1st

name

of a
In

at

issue

in

designation order.

the

structurally-

United States
_____________

1991), the

for the Assistant Attorney

his Deputy Assistants, who

by

Cir.

the memoranda

of the Criminal Division,

not

the validity

authorization

here, carried

had been identified by

Id. at 1435.
___

General in charge

but actually was signed by

then-current

v.

Attorney

one of

title but
General's

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.

did

not say

in

so many

1974)

(per

curiam).
In Citro
_____

we

authorization memorandum
signature line

is valid when it

for the

words

Assistant Attorney General

but goes

Such a ruling,

was

implicit in

our

authorization

memorandum.

In the case at hand, at any rate,

we

find no

fault in

the arrangement

authorization memoranda.
intercept

order

"misled" in any

and

general

an

contains an empty

out over the signature of a Deputy Assistant.

however,

that

endorsement of

of signatures

The district judge

its

extensions could

on the

who issued the

not

material sense by the presence

Attorney General Mueller's

the

have

been

of Assistant

printed name under the

signature

-11-

line.
the

The signatures
identities

of

on the memoranda
the

persons

authorizations (i.e., Deputy

Keeney)

who

correctly reflected
actually

gave

the

Assistants Bucknam, Richard and

-- each of whom had the

statutory power to do so by

virtue of the Attorney

United States v.
______________
correctly
render

General's "special designation."

Chavez,
______

identify person

electronic

416 U.S.

562 (1974)

(failure to

authorizing application

surveillance

illegal

where

-12-

does not

person

actually authorized application had power to do so).

The judgment of contempt is affirmed.
________

Cf.
___

who