In Re Alfred L. Hodges, JR., 524 F.2d 568, 1st Cir. (1975)
In Re Alfred L. Hodges, JR., 524 F.2d 568, 1st Cir. (1975)
2d 568
to hold appellant in contempt. Hearing was held on the motion a week later, on
April 10. Within 25 minutes before the hearing, appellant submitted an
affidavit alleging that he believed that a telephone he used had been subject to
an electronic surveillance.
3
Appellant argues that a purely conclusory "to my knowledge" denial on the part
of the government prosecutor is inadequate. The government contends that such
a disclaimer of knowledge of electronic surveillance meets the requirements of
18 U.S.C. 3504(a)(1). Both parties argue their proposition as a general
standard of governmental disclosure applicable to all cases.
Neither stance, however, adequately describes the current state of the law. The
dominate weight of authority has rejected a conclusory statement as an
appropriate response.1 Similarly, there is general agreement that an affidavit
stating that the files of all relevant agencies have been searched is adequate.2
But between these two poles there is little agreement. Some cases have required
that a statement of search be put in the form of an affidavit by the concerned
agencies3 while other cases have found oral testimony or letters as to search
acceptable.4 Another variant is a flexible approach, keying the necessary scope
and specificity of the government's denial to the concreteness of the claim of
surveillance.5
This court has not yet established a minimum standard for an adequate
governmental response to a claim of electronic surveillance. Our opinion in In
re Mintzer, 511 F.2d 471 (1 Cir. 1974), has been erroneously interpreted as
requiring only that the prosecutor affirm his lack of knowledge and nonutilization of any taps in framing his questions.6 While we agree that a purely
conclusory denial is not sufficient, we will not endeavor to set down a standard
here as the necessary facts and circumstances are not presented.
In the case before us the claim of surveillance was not made in the ordinary
course of proceedings below. Over a week had elapsed since the first attempted
questioning before the grand jury, and the contempt hearing was about to being
when the claim was first advanced. The government's denial, moreover, was
somewhat more than conclusory. The oral testimony of the government
attorney gave the affirmative assurance of the case agent that no information
had been given him which had come from electronic surveillance.
10
11
asked whether his intransigence was based on fear, he repeated, "I have to live
with that, your Honor. I am sorry. I have to live with my answer why I say No."
12
Affirmed.
See cases cited in notes 2-5 infra. But see United States v. Grusse, 515 F.2d 157
(2d Cir. 1975)
United States v. Doe (Marx), 451 F.2d 466 (1st Cir. 1971); In re Horn, 458 F.2d
468 (3d Cir. 1972); In re Grumbles, 453 F.2d 119 (3d Cir. 1971); Beverly v.
United States, 468 F.2d 732 (5th Cir. 1972)
United States v. Buscaglia, 518 F.2d 77 (2d Cir. 1975); United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974); Korman v. United States, 486 F.2d
926 (7th Cir. 1973); United States v. Alter, 482 F.2d 1016 (9th Cir. 1973)
United States v. Aloi, 511 F.2d 585 (2d Cir. 1975); United States v. D'Andrea,
495 F.2d 1170 (3d Cir. 1974); In re Tierney, 465 F.2d 806 (5th Cir. 1972); In re
Womack, 466 F.2d 555 (7th Cir. 1972); In re Vigil, 524 F.2d 209 (10th Cir.
1975)
United States v. Stevens, 510 F.2d 1101 (5th Cir. 1975); United States v. See,
505 F.2d 845 (9th Cir. 1974); United States v. Vielguth, 502 F.2d 845 (9th Cir.
1974)
In that case, the government had produced several wiretaps, one belatedly, and
had tendered the materials, authorizations, and affidavits required by In re
Lochiatto, 497 F.2d 803 (1st Cir. 1974). Counsel for the witness then requested
a government assurance that all central federal and state files be searched. In
this context we said, at 511 F.2d at 472 n. 2:
"While we think this, at least to federal authorities, is a salutary practice, and
may be mandated in other contexts, see Gelbard v. United States, 408 U.S. 41,
56 (92 S.Ct. 2357, 33 L.Ed.2d 179) (1972), we also think that at this
proceeding all that can be required is that those conducting the grand jury
proceeding affirm that they have no knowledge of and have not in any way
employed other taps in formulating lines of inquiry or questions to be posed to
the witness." (Emphasis supplied.)
Under these circumstances, such a wide-ranging, second stage inquiry would
have interfered unduly with an ongoing grand jury proceeding. Our formulation
was not addressed to the nature of the government's obligation to respond to a
claim of surveillance when first made.