Present: Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges
SUR PETITION FOR REHEARING
The petition for rehearing filed by United States of America, appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.*fn*
I would grant the petition for rehearing en banc. I agree with the approach of the Second Circuit in In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924 (1974), and the other courts of appeals which have followed it. There is no reason to interrupt grand jury proceedings needlessly to allow a witness who cannot be harmed to litigate the legality of a wiretap, as long as the questions the witness is asked to answer are not derived from obviously unlawful electronic surveillance.*fn1 Any arguable objections the witness may have can be litigated later if the witness is ever indicted and wishes to challenge introduction of the evidence at issue against him.
Of equal importance, I believe that the spirit of the Supreme Court's decisions compels this result. While the Court explicitly left this issue open in Gelbard v. United States, 408 U.S. 41, 61 n.22 (1972), an analogy to the constitutional question of grand jury use of evidence derived from unlawful searches and seizures sheds light on the statutory question posed in the present appeal.
In United States v. Calandra, 414 U.S. 338 (1974), the Court held that a witness summoned to appear and testify before a grand jury could not refuse to answer questions on the ground that they were the product of a search and seizure that allegedly violated the fourth amendment. The Calandra majority distinguished Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), which had held grand jury subpoenas based on illegally seized evidence to be invalid, in two respects:
(1) In Silverthorne, the targets of the subpoenas had already been indicted, and since the grand jury apparently did not need the subpoenaed materials for its investigative or accusatorial duty, it could not obtain evidence based on an illegal seizure merely for use in an upcoming criminal prosectuion. In Calandra, the target had not been indicted.
(2) In Silverthorne, prior to issuance of the subpoenas, there had been an adjudication that the search and seizure upon which they were based were illegal. In Calandra, the target's motion would have required interruption of the grand jury proceedings to decide this question for the first time.
The second ground for distinguishing Calandra from Silverthorne would seem to indicate a similar distinction between Gelbard and the present case. In the Silverthorne situation, where illegality has already been adjudicated, or in the Gelbard situation, where it has been conceded by the Government, the witness may invoke a right not to answer. But in the Calandra situation, or similarly in the present case, where the matter of legality remains disputed, the right of a witness not to be subjected to questions resulting from possibly unlawful activity is subordinated to the need for smooth functioning of the grand jury without interruptions. In the context of a search and seizure, Calandra holds that the witness is not entitled to litigate anything before answering questions or subpoenas. In the present case, I would hold that the witness is entitled only to the court's in camera examination of the documents authorizing the electronic surveillance for facial validity.*fn2 In both situations, of course, the matter of illegality could be litigated later if the witness is indicted and the Government seeks to introduce the evidence in question against him.
Accordingly, because I believe that the result reached by the panel is contrary to the spirit, even if not the letter, of the prior holdings of the Supreme Court and of our ...