In Re: Pedro Archuleta Grand Jury Subpoena Decision

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MiG 3 % M 'I e D s t a t e s  c o u r t  o f  a p p e a l s

F or t h e  S econd  C ir c u it

-> No; T547—September Term, 1976.

(Argued July 21, 1977 Decided July 22, 1977,
Opinion August 19, 1977.)

Docket No. 77-1286

I n  t h e  M atter  of t h e  Grand  J ury 
S ubpo en a  S erved U po n  

P edro A rch u leta

B e f o r e :

W aterm an  a n d  M e s k il l , Circuit Judges, 
a n d  C o ffr in , District Judge.*

Appeal from a judgment of civil contempt in the South­
ern District of New York, Owen, J., for refusing without 
just cause to answer questions before a grand jury. 

Affirmed.

L aw rence  S t e r n , Brooklyn, New York (Linda 
Backiel, Joan Friedland, Brooklyn, New 
York, of counsel), for Appellant Archuleta,

T hom as E . E n g el , Assistant United States At­
torney, Southern District of New York 
(Robert B. Fiske, Jr., United States Attor­
ney, Frederick T. Davis, Assistant United

Hon. Albert W. Coffrin of the District of Vermont, sitting by desig­
nation.

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States Attorney, Southern District of New 
York, of counsel), for the United States of 
America.

Meskill , Circuit Judge:

Pedro Archuleta, the appellant here, was found to be in 
civil contempt for refusing to answer questions put to him 
by a grand jury empanelled in the Southern District of 
New York. The order of contempt, issued by Judge Owen, 
remanded Archuleta until he purged himself of his con­
tempt or until the term of the grand jury expires. 28 U.S.C. 
§ 1826(a). Because of the time limitation of 28 U.S.C. 
§ 1826(b), we affirmed the order of the district court on 
July 22, 1977 this opinion explains the basis of our de­
cision.

On January 24, 1975, a bomb exploded in Fraunces Tav­
ern, a restaurant in New York City. Four people were 
killed, and fifty-three were injured. A group known as 
Fuerzas Armadas de Liberacion National Puertorriquena, 
or “FALN,” which seeks independence for Puerto Rico, 
claimed responsibility for this act of terrorism. A number 
of subsequent bombings have been traced to the FALN.

In April, 1975, a grand jury was empanelled in the 
Southern District of New York to investigate these bomb­
ings. The term of that grand jury expired in October, 
1976. A second grand jury, empanelled to investigate the 
same crimes, is now sitting.

In November, 1976, a “bomb factory” was discovered in 
an apartment in Chicago, owned by one Carlos Torres. 
Evidence was found there linking Torres, who is now a

1 28 U.S.C. § 1826(b) provides:
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.

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fugitive, to the FALN. Searchers also found a letter from 
a church in San Antonio, Texas, to Maria Cueto, the Execu­
tive Director of The National Commission on Hispanic Af­
fairs of The Protestant Episcopal Church. Miss Cueto and 
her secretary, Eaisa Nemikin were called before the grand 
jury, and refused to testify concerning the whereabouts of 
Torres, after being ordered to do so. See In  re Wood, 430 
F.Supp. 41 (S.D.N.Y. 1977). They were held in civil con­
tempt by the district court, and were remanded until they 
testified. This Court affirmed the judgment of contempt, 
In re Cueto, 554 F.2d 14 (2d Cir. 1977), and they are pres­
ently incarcerated.

Shortly after our decision in Cueto, supra, a grand jury 
subpoena was served upon the appellant. He had been a 
member of The National Commission on Hispanic A ffairs; 
he had also been named in various newspaper accounts as 
a possible supplier of dynamite to the FALN. Motions to 
quash the subpoena were denied by Judge Lasker. Before 
the grand jury, he was asked the following questions:

(1) Did you provide dynamite to anyone you knew to 
be in a group called the FALN at any time prior 
to January 24, 1975?

(2) Do you know the source of dynamite explosives 
used at the bombing of Fraunces Tavern?

(3) Do you know anyone who is responsible for the 
bombing at Fraunces Tavern?

(4) In early 1968 did you yourself steal any dynamite 
from the Heron Dam Project site near Parkview, 
New Mexico?

Archuleta invoked his Fifth Amendment immunity, and 
refused to testify. The prosecution then applied for, and 
obtained, from Judge Brieant, an order of immunity.

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Judge Brieant also entered a protective order designed 
to avoid public disclosure of the grand jury proceedings.

Thereafter, Archuleta refused a second time to answer 
these four questions. After the foreman had expressly 
directed him to answer, the questions were asked a third 
time. Bather than responding, appellant made a series of 
political speeches explaining his refusal to testify. After 
polling the jury to determine that they all felt the ques­
tions to be “reasonably necessary and proper,” Judge 
Brieant directed appellant to testify. When Archuleta 
persisted in his contumacious conduct, he was held in con­
tempt on June 30, 1977, by Judge Bichard Owen, and re­
manded, pursuant to 28 II.S.C. § 1826.

I.

Appellant’s first contention is that the grand jury had no 
evidentiary basis upon which to call him. In Blair v. United 
States, 250 U.S. 273 (1919), it was stated that a witness 
before a grand jury i s :

bound not only to attend but to tell what he knows in 
answer to questions framed for the purpose of bring­
ing out the truth of the matter under inquiry.

He is not entitled to urge objections of incompetency 
or irrelevancy, such as a party might raise, for this is 
no concern of his.

Id. at 282. This has continued to be the rule. Becentlv, 
Judge Friendly explained:

The safeguards built into the grand jury system, such 
as enforced secrecy and use of court process rather 
than the constable’s intruding hand as a means of 
gathering evidence, severely limit the intrusions into 
personal security which are likely to occur outside the 
grand jury process. To be sure, on occasion, a grand

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jury may overstep bounds of propriety either at its 
own or the prosecutor’s instance, and conduct an in­
vestigation so sweeping in scope and undiscriminating 
in character as to offend other basic constitutional pre­
cepts. When this occurs courts are not without power 
to a c t . . . .  A part from such cases, when the grand jury 
has engaged in neither a seizure nor a search, there is 
no justification for a court’s imposing even so appar­
ently modest a requirement as a showing of “reason­
ableness”-—with the delay in the functioning of the 
grand jury which that would inevitably entail.

United States v. Doe (Schwarts), 457 F.2d 895 (2d Cir. 
1972), cert, denied, 410 U.S. 941 (1973). See Branzburg v. 
Hayes, 408 U.S. 665, 701-02 (1972); Hale v. Henkel, 201 
U.S. 43, 65 (1906).

The actions of the grand jury here are clearly justified. 
The questions asked of Archuleta were narrowly focused 
on criminal conduct which had occurred in the Southern 
District. His common association with two fugitives sought 
by the FB I in connection with a possibly related crime,2 as 
well as the newspaper reports of his activities, wrnre fully 
sufficient to justify the subpoena. See Branzburg v. Hayes, 
supra, at 701-02; Costello v. United States, 350 U.S. 359, 
362-63 (1956). Archuleta’s attempt to evade his duty as a 
citizen on this ground is without merit.8

2 Arrest warrants for Torres and Oscar Lopez, charging possession of 
explosives and unlawful flight, have been issued in Chicago.

Archuleta now complains that he was never asked a question about 
the whereabouts of Torres. I t  ill becomes a witness who contuma­
ciously refused to testify to claim a deprivation of rights based on the 
grand jury’s failure to question him further.

3 Archuleta also appears to claim that this grand jury is not interested 
in finding the bombers responsible for four deaths, but is merely per­
secuting him and those who share his political views. There being no 
evidence to support this contention, we consider it groundless.

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II.

Archuleta’s second claim is that the questions asked him 
in the grand jury were based on illegal electronic surveil­
lance, and thus that the contempt order must be vacated 
under Gelbard v. United States,, 408 U.S. 41 (1972). This 
claim is also without merit.

The appellant made sweeping allegations of illegal wire­
tapping before the district court. The evidence marshalled 
in support of this was a recitation of difficulties in com­
pleting calls, together with strange noises heard on com­
pleted calls. There was also an affidavit, from one Mary 
Lujan, stating that she had been asked by FB I agents if 
she had telephoned Archuleta.

In response, the government produced affidavits from 
the Assistant United States Attorney and FB I agents in 
charge of the investigation of FALN bombings in New 
York. These affiants stated that they were unaware of 
any illegal electronic surveillance of Archuleta. A similar 
set of affidavits was submitted from federal authorities in 
Chicago, where an investigation into related crimes is 
underway. Finally, the prosecutor submitted an affidavit 
from the person in charge of the records of electronic sur­
veillance maintained by the FB I in Washington stating 
that a search of those records revealed no electronic sur­
veillance of appellant. The appellant now challenges this 
response as inadequate and argues that searches of state 
and local records in New Mexico, Illinois and New York 
were required before he could be held in contempt.

We doubt whether the appellant has made even the 
preliminary showing necessary to require the government 
to respond to his claim of illegal electronic surveillance. 
Some mechanical troubles with a telephone, together with 
knowledge of a call easily derived from long distance tele-

5326



phone records/ is such insubstantial evidence that in most 
cases it puts no burden on the prosecutor to “affirm or 
deny” the existence of wiretapping. See In  re Grand Jury  
(Vigil), 524 F.2d 209, 214 (10th Cir. 1975), cert, denied, 
425 U.S. 927 (1976).

However, if, as the district court held, the showing 
made was sufficient to trigger a governmental response, 
the answer of the prosecutor was sufficient. As we recently 
explained in United States v. Yanagita, 552 F.2d 940 (2d 
Cir. 1977):

But even in a grand jury proceeding, upon the gov­
ernment’s production of a valid warrant the witness 
has been held not to be entitled to a full-blown hear­
ing on the legality of the warrant prior to testifying 
since “the traditional notion that the functioning of 
the grand jury system should not be impeded or inter­
rupted could prevail at that time over the witness’ 
interest . . . .” In  re Persico, 491 F.2d 1156, 1160 (2d 
Cir. 1974). See also Gelhard v. United States, supra, 
408 IJ.S. at 70, 92 S.Ct. 2357 (White, J., concurring).

Similarly, where the questions asked of a grand 
jury witness are narrow in scope, an affidavit by the 
Assistant United States Attorney in charge of the 
grand jury proceeding, as distinguished from an all­
agency search, will suffice, since he would know if his 
questions were derived from illegal surveillance.

“It must be remembered that any electronic sur­
veillance by the government is relevant only if it 
is somehow used in formulating questions that the 
grand jury intends to ask. Thus, surveillance con­
ducted by the government, the results of which were 
not known to the agents investigating this case,

4 There is no claim that the FBI knew of the contents of the call.

5327



would not be relevant. . . .  I  think that the assistant 
United States attorney handling a case and the FB I 
agent in charge of the investigation of a case are 
the two people most likely to know if the fruits of 
any electronic surveillance were used to gain in­
formation on which the grand jury would base its 
questions. Thus, I think that the denial was suffi­
cient.” United States v. Grusse, 515 F.2d 157, 159 
(2d Cir. 1975) (Lumbard, J., concurring).

In addition, the duty of the government to respond 
under % 3504 may vary with the specificity of the 
claims raised by the witness. United States v. See, 
505 F.2d 845, 856 (9th Cir. 1974), cert, denied, 420 U.S. 
992, 95 S.Ct. 1428, 43 L.Ed. 2d 673 (1975); United 
States v. Stevens, 510 F.2d 1101 (5th Cir. 1975).

Id. at 944. See Gelbard v. United States, 408 U.S. 41, 71 
(1972) (White, J., concurring). (“Of course, where the 
Government officially denies the fact of electronic surveil­
lance of the witness, the matter is at an end and the witness 
must answer.”) The standard set out in Tanagita was fully 
complied with. The questions put to Archuleta were nar­
rowly focused on specific criminal activity. I t was thus 
relatively simple for the prosecutor to determine the evi­
dentiary basis for the questions. In response to vague, 
sweeping charges of wiretapping, the government re­
sponded with specific, factual denials of illegal conduct. 
Gelbard requires no more.6

5 After oral argument, Archuleta’s counsel submitted a letter to the 
Court alleging that the Bureau of Alcohol, Tobacco and Firearms 
("AFT”) was also investigating the FALN. He now demands that 
appellant be released until an affidavit is secured from ATF denying 
any illegal electronic surveillance.

Assuming, arguendo, that ATF has actively investigated this case, 
our decision is not affected. Gelbard and Tanagita focus the investi­
gation of "taint” on the particular questions put to the witness. Here,

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III.

Archuleta has also challenged the racial and ethnic com­
position of the grand jury.6 All parties agree that this 
grand jury was selected by procedures which complied with 
the Ju ry  Selection and Service Act of 1968, 28 U.S.C. 
§ 1861 et seq. The vague, conclusory allegations of under­
representation of Hispanics made by Archuleta do not even 
make out a colorable claim of a constitutional violation, 
let alone a substantial and prejudicial exclusion of mi­
nority jurors. Absent such a showing, this jury, selected 
in accordance with a valid law, is not subject to attack.7 
United States v. Bennet, 539 F.2d 45, 55 (lOtli Cir. 1976), 
cert, denied,----- U.S. ------- (197—).

the Assistant United States Attorney, who knows the source of his own 
questions, denied any knowledge of electronic surveillance. This meets 
the requirements of Gelbard and Tanagita in this ease.

6 Archuleta made the same challenge when called before a grand jury 
in the Northern District of Illinois. The district court there rejected 
the challenge on the merits.

7 The appellant concedes that he has no statutory standing to mount 
this challenge under 28 U.S.G. § 1867. He relies exclusively on his con­
stitutional challenge. The government vigorously urges that Archuleta 
lacks any standing to raise this claim. In re Maury Santiago, 533 F.2d 
727 (1st Oir. 1976), so held, citing United States v. Duncan, 456 F.2d 
1401, 1403-04 (9th Cir.), vacated for reconsideration of other matters, 
409 U.S. 814 (1972). See Blair v. United States, 250 U.S. 273, 282 
(1919).

However, in United States ex rel. Chestnut v. Criminal Court, 442 
F.2d 611 (2d Cir.), cert, denied, 404 U.S. 856 (1971), relied on by 
Archuleta, a footnote indicated that a witness before a state grand 
jury had standing to challenge its composition. Id. at 615 n.7. How­
ever, that grand jury had the power to institute criminal contempt 
charges, which it had done. Here, by contrast, we are dealing with a 
civil contempt initiated by the United States Attorney. The Chestnut 
court focused on these powers of the grand jury, which are unavailable 
in federal practice. While we do not decide the issue, the footnote in 
Chestnut appears to be a weak reed for any future challenge by a 
witness to the grand jury array. Moreover, Chestnut resolved the sub­
stantive issue against the eontemnor on the ground that the jury selec­
tion procedure was fair, and created no prejudice, even if some groups 
were under-represented.

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IY.

Archuleta’s final point of any substance is a claim that 
his conduct is justified because of newspaper stories con­
cerning the FALN, which have appeared during the in­
vestigation of the bombings. Apparently, his theory is 
that anything he might say in the grand jury might be 
disclosed by the jurors or the prosecutor, who may have 
“leaked” the material already published.8 His ostensible 
concern is that some of this testimony would thus reach 
the Chicago grand jurors who are also investigating FALN 
bombings. Archuleta is a “target” of that grand jury 
investigation.

I t  is self-evident that no breach of grand jury secrecy 
concerning Archuleta has occurred to date, since he has 
refused to answer any questions. The government has 
supplied affidavits denying that any breach of grand jury 
secrecy was the basis for the articles mentioned. Nor is 
there any reason to believe that the jurors or the prose­
cutor will violate their oaths, and invade the secrecy of 
the proceedings. Appellant’s speculation does not provide 
a justification for his contumacious conduct. If  such vio­
lations do occur, the district court has adequate powers 
to remedy the situation.

The remainder of Archuleta’s many claims, consisting 
largely of wholly unwarranted attacks on various federal 
judges and prosecutors, are not worthy of discussion. The 
judgment of civil contempt is affirmed.

The Department of Justice is now investigating those disclosures. 
We assume that they will take appropriate measures against those 
responsible.

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