465 F.

2d 802

Jeffrey H. SMILOW, Appellant,

v.
UNITED STATES of America, Appellee.
No. 924, No. 72-1738.

United States Court of Appeals,

Second Circuit.
Argued July 13, 1972.
Decided July 20, 1972.
Judgment Vacated Oct. 24, 1972.

See 93 S.Ct. 268.

Hyman Bravin, New York City, for appellant.
Henry Putzel, III, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S.
Atty. for Southern District of New York, Joseph Jaffe and Shirah Neiman,
Asst. U. S. Attys., on the brief), for appellee.
Before FEINBERG, MULLIGAN and OAKES, Circuit Judges.
FEINBERG, Circuit Judge:

Jeffrey H. Smilow, a 17-year old high school student, appeals from a judgment
of the United States District Court for the Southern District of New York,
Edward Weinfeld, J., holding appellant in contempt for refusing to answer
certain questions asked him by a duly constituted grand jury and sentencing him
to jail for 30 days unless he purged himself sooner by answering the questions.
The district court refused to stay its order and appellant has been committed to
the Federal Detention Center at West Street since June 30. Appellant took a
prompt appeal and moved in this court for bail pending appeal. The motion was
denied by Chief Judge Friendly on July 6, but the appeal was expedited and set
down for argument one week later before the next scheduled panel.1 At oral
argument of the appeal, the United States Attorney frankly conceded that there
was no real danger that appellant would flee and pointed out that appellant had

already been granted relatively low bail in connection with an alleged state
offense described below. Under these circumstances, and because of appellant's
youth, because we felt that the appeal was not frivolous or taken for delay and
that the issues raised were sufficient to justify further consideration and
preparation of an opinion, and because completion of the sentence might moot
the appeal, we granted bail pending appeal. For the reasons set forth below, we
affirm the order of the district court.
2

The grand jury that summoned appellant is investigating the fire bombing on
January 26, 1972 of the Manhattan offices of Columbia Artists Management,
Inc. and Hurok Concerts, Inc. The gravity of the investigation is made clear by
the Government's allegation that a young woman died as a result of the fire
bombing at the Hurok office. Three persons have already been indicted in the
Southern District in connection with these fire bombings for violation of 18
U.S.C. Secs. 844(i) and 2. Appellant has not been federally indicted but has
been charged in the New York State courts with arson in the second degree,
N.Y. Penal Law Sec. 150.10 (McKinney's Consol.Laws, c. 40, 1967), in
connection with the fire bombing at the Columbia Artists office.

On June 26, 1972, appellant appeared before the grand jury and, after being
advised of his rights and conferring with counsel, refused to answer material
questions relating to the grand jury's investigation. Thereafter, he persisted in
this refusal even though the district judge, after hearing argument on the matter,
ordered him to respond. Appellant attempts to justify his recalcitrance on
constitutional and statutory grounds, which we discuss below. Noticeably
absent from his claims, however, is the fifth amendment privilege against selfincrimination. Appellant has deliberately chosen not to rely on that
constitutional provision, in part it seems because the Government is prepared to
offer him use immunity pursuant to 18 U.S.C. Sec. 6002. See Kastigar v.
United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

We begin with appellant's claim that he is privileged from testifying before the
grand jury by reason of the first amendment freedom of worship clause.
Appellant asserts that as an "observant and committed Jew" he must refuse to
answer the grand jury questions or else suffer "Divine punishment and
ostracism from the Jewish Community" as an "informer." The legal claim is
apparently a novel one and its precise religious basis is not clear from the
record before us. But even assuming arguendo that there is such a tenet of
Jewish law and that appellant devoutly embraces it, this would not be sufficient
justification for appellant's conduct. The Supreme Court has only last month
emphasized the duty that rests upon every citizen to furnish to a grand jury
evidence of crime, even when the claim is made that doing so interferes with

the freedom of the press. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33
L.Ed.2d 626 (1972).2 And we do not believe that appellant's right to refuse to
answer highly relevant questions is any greater than those claimed by
petitioners in Branzburg, in the face of the compelling state interest in this case
in uncovering evidence of serious crimes of violence. Accord, People v.
Woodruff, 26 A.D.2d 236, 272 N.Y.S.2d 786 (1966), aff'd mem., 21 N.Y.2d
848, 288 N.Y.S.2d 1004 (1968); In re Williams, 269 N.C. 68, 152 S.E.2d 317,
cert. denied, 388 U.S. 918, 87 S.Ct. 2137, 18 L.Ed.2d 1362 (1967).
5

We do not say that bona fide religious views must always give way to the rigid
demands of a grand jury investigation. If appellant had refused to appear before
the grand jury on the ground that he had been summoned to testify on a Jewish
Holy Day, the considerations would be different. Cf. Sherbert v. Verner, 374
U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Recognition of appellant's
right to follow his religious beliefs would not then completely nullify society's
interest in a thorough investigation. A postponement for a day or two would
provide a feasible and sensible accommodation of individual and societal
interests. But appellant's claim that he can keep forever hidden possible
evidence of serious crime is obviously far different. While courts must be
sensitive to the rights of citizens to freely exercise their religious beliefs, see
Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), those
rights are not absolute. In this case, the reasons for assuming that appellant has
vital relevant information, in view of the state court indictment, are clear and no
claim is made that these facts can conveniently be obtained from others. The
penalty to be imposed is narrowly drawn to effectuate the goal of obtaining
vital testimony. Appellant makes no claim that the grand jury investigation is
designed to harass him or those holding his religious beliefs. On this record,
therefore, we believe that appellant's first amendment claim is outweighed by
the compelling state interest in having the grand jury hear "every man's
evidence" bearing on alleged criminal activity that resulted in the death of an
innocent person. Branzburg v. Hayes, supra, 408 U.S. 665, 92 S.Ct. 2646, 33
L.Ed.2d 626.

Appellant also argues that the contempt judgment is invalid because the
Government refuses to "affirm or deny" that it had placed an unauthorized
wiretap on the telephone of the Jewish Defense League's office, where
appellant purportedly worked in his spare time in return for a weekly
honorarium of $15. The quotation is from 18 U.S.C. Sec. 3504, enacted as part
of the Organized Crime Control Act of 1970, and reproduced in relevant part in
the margin.3 Although the Government has denied illegally overhearing any
conversation to which appellant was a party, appellant claims that the
Government must also disavow any illegal tapping at all of the office in

question. Cf. United States v. United States District Court for Eastern District
of Michigan, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
7

But appellant is a witness before a grand jury. In United States ex rel. Rosado
v. Flood, 394 F.2d 139 (2d Cir.), cert. denied, 393 U.S. 855, 89 S.Ct. 111, 21
L.Ed.2d 124 (1968), we held, before passage of the Omnibus Crime Control
and Safe Streets Act of 1968, that we would not interfere with the effort of a
state grand jury to require a witness to answer questions even though the
witness claimed the questions were based on an illegal wiretap of his own
conversation. One basis of our holding was that ordinarily a grand jury witness
"cannot impede collection of evidence by the grand jury," 394 F.2d at 141, and
in the factual context of that case, we adhered to that policy. In Gelbard v.
United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), the Supreme
Court recently held that a provision of the Omnibus Crime Control Act, 18
U.S.C. Sec. 2515,4 does grant a grand jury witness "just cause" under 28 U.S.C.
Sec. 1826(a)5 for refusing to answer and precludes a finding of contempt upon
"a showing that interrogation would be based upon the illegal interception of
the witness's communications . . .." 92 S.Ct. at 2358. (Emphasis added.) As Mr.
Justice White's concurring opinion in Gelbard points out, the 1968 statute
"unquestionably works a change in the law with respect to the rights of grand
jury witnesses." Id. at 2372. The question is how much of a change. We do not
read that statute, nor the Court's decision interpreting it, as providing that a
grand jury witness may refuse to answer on the ground that the Government has
illegally heard someone else's conversation on premises other than those of the
witness, however reprehensible that may be. See United States v. Alderman,
394 U.S. 165 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968); In re Grumbles, 453
F.2d 119 (3d Cir. 1971); United States v. Doe, 451 F.2d 466 (1st Cir. 1971).
Appellant's purported relationship with the Jewish Defense League
headquarters-namely, that he worked there in his spare time as a high school
student and earned a weekly honorarium of $15-is far too remote for us to
conclude that any illegal interceptions of conversations there, even those to
which appellant was not a party, constituted an invasion of his reasonable
expectations of privacy. Moreover, appellant has made no claim or showing
that such alleged interceptions were the result of government wiretapping
directed at him. Accordingly, we do not believe that on the present state of the
law, appellant can justify his refusal to answer on this ground.

Appellant also claims that to compel him to answer questions relating to his
conduct on the morning of January 26, 1972 would infringe his "Sixth
Amendment rights to a fair trial" and deny him due process because he has been
charged in the state courts with committing arson on that date. But appellant's
constitutional remedy lies in the fifth amendment privilege against self-

incrimination, which he refuses to assert, and not the other constitutional

provisions he has cited.
9

Judgment affirmed. The mandate shall issue seven days from the date hereof to
allow appellant a brief opportunity to apply to the Supreme Court for a further
stay.

Section 1826 of Title 28, which empowers a court to summarily order the
confinement of a witness who refuses without just cause to testify or provide
information pursuant to a court order, provides in subsection (b) that:
Any appeal from an order of confinement under this section shall be disposed
of as soon as practicable, but not later than thirty days from the filing of such
appeal.
28 U.S.C. Sec. 1826(b).

In Branzburg, the Court specifically noted:

Until now the only testimonial privilege for unofficial witnesses that is rooted
in the Federal Constitution is the Fifth Amendment privilege against compelled
self-incrimination.
Branzburg v. Hayes, supra, 92 S.Ct. at 2660.

(a) In any trial, hearing, or other proceeding in or before any . . . grand jury
(1) upon a claim by a party aggrieved that evidence is inadmissible because it
is the primary product of an unlawful act or because it was obtained by the
exploitation of an unlawful act, the opponent of the claim shall affirm or deny
the occurrence of the alleged unlawful act . . . .

Section 2515 provides:

Whenever any wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any . . . grand jury . . . if the disclosure of that
information would be in violation of this chapter.
18 U.S.C. Sec. 2515.

Subsection (a) of section 1826 provides:

Whenever a witness in any proceeding before or ancillary to any court or grand

jury of the United States refuses without just cause shown to comply with an
order of the court to testify or provide other information . . . the court . . . may
summarily order his confinement at a suitable place until such time as the
witness is willing to give such testimony or provide such information . . . .
28 U.S.C. Sec. 1826(a).