United States v. Jonathan Edward Vielghth, Special Grand Jury Witness

Appellant was called to testify before a grand jury. He declined to answer certain questions on the ground his answers might incriminate him. He was granted immunity pursuant to 18 U.S.C. §§ 6002 and 6003 and ordered to testify. He appeared before the grand jury, but again refused to answer certain questions.

The government moved that appellant be held in civil contempt pursuant to 28 U.S.C. § 1826 (a). Appellant offered the defense that he believed the questions were based upon unlawful electronic surveillance and his answers would be inadmissible under 18 U.S.C. § 2515 , citing Gelbard v. United States, 408 U.S. 41 , 92 S.Ct. 2357 , 33 L.Ed.2d 179 (1972).

Appellant submitted two affidavits. The second and more detailed stated:

The affidavit then identified the telephone numbers, the premises,' and the periods of time appellant believed were involved in the alleged electronic surveillance.

In response the government filed two affidavits, one of the attorney and the other of the investigating agent responsible for the grand jury investigations. Each affidavit stated, “To my knowledge, Mr. Vielguth has not been the subject of any illegal electronic surveillance nor…

Circuit Judge (dissenting):

I would affirm. I would follow what was said in the Alter case, United States v. Alter, 482 F.2d 1016 (9 Cir. 1973), rather than telling the district court that it didn’t read Alter right. Further, the record shows that defendant says he must have been subjected to electronics surveillance because (his opinion) the grand jury questions “could not have been asked without wire tapping.” I would guess that there are 10,000 cases of an informer for every one of electronic surveillance. I would not put the government to its proof on the basis of the legal opinion of Yielguth, which does not exclude the more probable source. Whatever Vielguth did, it has not been suggested that he lived alone in a windowless room and stayed there alone year in and year out.

As to the government’s response, if one was required as the majority holds, I would hold now that the response was insufficient. The affidavits are replete with the statement, “To my knowledge.” That, to me, is an obfuscation carrying with it all of the clarity of that pitiful phrase, “and/or”, so prevalent in the 1930’s.

As I have indicated in my concurrence in United States v. Weir, 495 F.2d 879 at…

502 F.2d 1257 UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Edward VIELGHTH, Special Grand Jury Witness, Defendant-Appellant. No. 74-2193. United States Court of Appeals, Ninth Circuit. July 17, 1974. Donald J. Stang (argued), Doron Weinberg, of Stender, Lapides, Stender & Weinberg, San Francisco, Cal., for defendant-appellant. Martin Fassler, Berkeley, Cal., submitted a brief amici curiae on behalf of the American Civil Liberties Union and the National Lawyers Guild Electronic Surveillance Project. Gerard Hinkley, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. OPINION Before CHAMBERS, BROWNING and CHOY, Circuit Judges. PER CURIAM: 1 Appellant was called to testify before a grand jury. He declined to answer certain questions on the ground his answers might incriminate him. He was granted immunity pursuant to 18 U.S.C. 6002 and 6003 and ordered to testify. He appeared before the grand jury, but again refused to answer certain questions. 2 The government moved that appellant be held in civil contempt pursuant to 28 U.S.C. 1826(a). Appellant offered the defense that he believed the questions were based upon unlawful electronic surveillance and…