Applicants had been granted "use" immunity, and were testifying
before a grand jury when court-approved electronic surveillance of
a telephone resulted in interception of a conversation of their
attorney. Their refusal thereafter to answer certain questions
propounded by the grand jury resulted in commitment for civil
contempt. The applicants, claiming deprivation of their right to
counsel, appealed the commitment and applied for bail pending
disposition of the appeals. The Government responded that, since
the applicants had been granted all the immunity to which they were
constitutionally entitled, there was no longer an attorney-client
privilege to be protected.
Bail should be granted under the standard
applicable under 28 U.S.C. § 1826(b), since the issues are not
frivolous and the appeals are not taken for delay.
MR. JUSTICE DOUGLAS, Circuit Justice.
These are applications for bail which raise the questions
comparable to those presented in In re Beverly,
which I granted bail.
In the present cases, there was electronic surveillance of a
telephone which a court had approved pursuant to 18 U.S.C. § 2518.
During that surveillance, a conversation of applicants' attorney
was intercepted. Applicants were testifying before a grand jury,
having been granted immunity under 18 U.S.C. § 6002 and § 6003. On
refusing to answer certain questions propounded, they were
committed for civil contempt. The standard for bail in civil
contempt proceedings is set forth in 28 U.S.C. § 1826(b), which
Page 409 U. S. 1233
bail shall be granted if the issues are not frivolous and if the
appeal is not taken for delay. Here the immunity granted the
applicants was a so-called "use" immunity, as distinguished from
the "transactional" immunity which some of us thought was required
when the issue was before us last Term in Kastigar v. United
States, 406 U. S. 441
It is now argued that applicants have obtained all the immunity
to which they were constitutionally entitled, and that there is no
longer an attorney-client privilege to be protected. Hence, it is
argued that the Sixth Amendment right to counsel which weighed
heavily with me in Russo v. Byrne, ante,
p. 409 U. S. 1219
(in which I granted a stay on July 29, 1972), is not relevant
I accept, of course, the Court's decision that only "use"
immunity, not "transactional" immunity, is the constitutional
standard under the Fifth Amendment. The fact remains, however, that
the "leads" obtained from testimony given after "use" immunity has
been granted can be used to indict and convict the applicants. It
seems to me therefore that the attorney-client privilege does
continue, and indeed may be much more vital to the applicants than
it would have been had "transactional" immunity been the standard
adopted by the Court.
The question remains whether a search warrant issued for
electronic surveillance under the Fourth Amendment can invade the
domain of the Sixth Amendment and destroy the attorney-client
relation. That is an exceedingly serious question on which this
Court has not spoken.
Beyond those two questions there is a further one -- whether, on
the issue of relevance, an in camera
adequate or whether an adversary hearing is required. That is the
question central both to the Russo-Ellsberg
Page 409 U. S. 1234
case, to In re Beverly,
and to the present two
Hence, in spite of the fact that my Brother POWELL has
heretofore denied bail in these cases, I have reluctantly concluded
that the requisite for bail in civil contempt cases, 28 U.S.C. §
1826(b), has been satisfied here.
* Together with No. A-80, Reilly et al. v. United
also on application for bail.