In Re Grand Jury Witness. Nancy (Michelle) Whitnack v. United States

544 F.2d 1245 In re Grand Jury Witness. Nancy (Michelle) WHITNACK, Appellant, v. UNITED STATES of America, Appellee. No. 76-3138. United States Court of Appeals, Ninth Circuit. Dec. 29, 1976. John Ziegler, Seattle, Wash., for appellant. Stan Pitkin, U.S. Atty., Seattle, Wash., for appellee. Before TRASK, GOODWIN and KENNEDY, Circuit Judges. GOODWIN, Circuit Judge. 1 The narrow issue in this appeal from an adjudication of contempt and resulting imprisonment is whether a witness may, by the "mere assertion" that her grand-jury subpoena was the primary product of an illegal wiretap, successfully resist the grand jury's demand for nontestimonial evidence, in this case, fingerprints and handwriting samples. 2 The case does not involve the production of testimonial evidence. See Gelbard v. United States, 408 U.S. 41 , 92 S.Ct. 2357 , 33 L.Ed.2d 179 91972 ); United States v. Vilguth, 502 F.2d 1257 (9th Cir.1974). This witness simply refused to make or furnish a handwriting sample, and refused to allow her fingerprints to be taken. 1 Her sole basis for her refusal to furnish these items of tangible evidence was that she said she believed that a telephone at a house where she lived had…

The narrow issue in this appeal from an adjudication of contempt and resulting imprisonment is whether a witness may, by the “mere assertion” that her grand-jury subpoena was the primary product of an illegal wiretap, successfully resist the grand jury’s demand for nontestimonial evidence, in this case, fingerprints and handwriting samples.

The case does not involve the production of testimonial evidence. See Gelbard v. United States, 408 U.S. 41 , 92 S.Ct. 2357 , 33 L.Ed.2d 179 (1972); United States v. Vielguth, 502 F.2d 1257 (9th Cir. 1974). This witness simply refused to make or furnish a handwriting sample, and refused to allow her fingerprints to be taken. 1 Her sole basis for her refusal to furnish these items of tangible evidence was that she said she believed that a telephone at a house where she lived had been wiretapped.

The government chose not to answer the wiretap allegation with the detailed disclaimer required when a witness files a nonfrivolous affidavit, that the evidence sought is based upon illegal wiretap intelligence. 2 See, e. g., United States v. Vielguth, supra.

The government chose, instead, to meet the assertion by arguing, in the manner of a demurrer,…

concurring:

Appellant argues that under Gelbard v. United States, 408 U.S. 41 , 92 S.Ct. 2357 , 33 L.Ed.2d 179 (1972), she has the right to refuse to satisfy the inquiries of the grand jury since, in her opinion, they are based upon the product of illegal wiretaps, and that, concomitant with this right, she may refuse to comply with the demands of the grand jury so long as the Government does not, as required by 18 U.S.C. § 3504 (a), affirm or deny the existence of these wiretaps. Where it is clear that the demands of the grand jury are predicated on evidence obtained by the Government independently of any illegal wiretaps, I agree that a witness has no standing to invoke the Gelbard rule or to insist that the Government affirm or deny under section 3504(a). Because the grand jury demands were undoubtedly supported by legitimate independent grounds, which the most cursory surveillance of Whitnack’s whereabouts could verify, I concur in the judgment of the court.

I cannot agree, however, with the suggestion that simply because the grand jury demanded nontestimonial evidence, the Government need not respond as required by section 3504 to allegations of illegal wiretapping. Such…