United States of America, Appellee, v. Dominick Digirlomo, Appellant, 548 F.2d 252 (8th Cir. 1977)

In 1973 in the course of the investigation the government obtained from the district court an order authorizing the interception and recording of conversations over a telephone in Kansas City listed in the name of appellant. In the course of the interceptions conversations of appellant's son, Nicholas, were overheard. The government gained information leading it to believe that appellant was involved in illegal gambling, and it was decided to call him as a witness before the federal grand jury.

Appellant was duly subpoenaed in 1974. He appeared before the grand jury but refused to testify. The district court found that his refusal was without just cause and committed him to jail as provided by 28 U.S.C. § 1826(a). There was an appeal, and the order of the district court was affirmed. DiGirlomo v. United States, 520 F.2d 372 (8th Cir.), cert. denied, 423 U.S. 1033, 96 S. Ct. 565, 46 L. Ed. 2d 407 (1975). However, appellant never in fact testified before the grand jury.

In late 1975 the grand jury returned an indictment charging Frank Tousa, John Anthony Costanza and others, including Nicholas DiGirlomo, with having conducted an illegal gambling operation in violation of 18 U.S.C. § 1955.³ 

In early 1976 some of the defendants, including Nicholas DiGirlomo, filed motions to suppress evidence on the basis of alleged illegalities in the proceedings leading up to or following the wiretap authorization or authorizations that had been given by the district court. The motion of Nicholas DiGirlomo was sustained.

In May, 1976 the government subpoenaed appellant to appear and testify as a witness at the trial of Tousa and Costanza, which trial had been severed from that of the other defendants. Appellant promptly moved to quash the subpoena on the ground that the testimony sought was the product of or was obtained by the unlawful exploitation of an unlawful wiretap. A hearing was held, and on June 1, 1976 the district court denied the motion.

Appellant was called to the stand as a government witness on June 4 and made additional objections to being required to testify. Those objections were overruled. The government put four questions to appellant, two of which he refused to answer. The government moved that appellant be adjudged in contempt, and adjudication followed immediately.

It should be said that prior to being called to the witness stand appellant had been granted immunity as provided by 18 U.S.C. §§ 6001 et seq.

For reversal appellant advances the following contentions: (1) That a letter purportedly written by Assistant Attorney General Henry E. Peterson to Burt C. Hurn, United States Attorney for the Western District of Missouri, authorizing an application for a grant of immunity to appellant was improperly received in evidence at the immunity hearing. (2) That the district court erred in refusing to quash the subpoena and suppress the testimony of the defendant. (3) That the sentence imposed by the district court following the contempt adjudication was illegal. (4) That the district court erred in refusing to allow appellant time to gather and submit material in mitigation of punishment.

As heretofore noted, 18 U.S.C. § 401 provides that a person adjudged to be in criminal contempt of court may be punished by a fine or by imprisonment. The statute does not authorize punishment by both fine and imprisonment.

Counsel for the government concedes that the sentence of imprisonment imposed on appellant in addition to the fine was illegal and cannot be sustained. In re Bradley, 318 U.S. 50, 63 S. Ct. 470, 87 L. Ed. 500 (1943); United States v. Sampogne, 533 F.2d 766 (2d Cir. 1976).

In view of that concession and in view of the fact that the fine has been paid, we find it unnecessary to consider the other questions raised by appellant. See United States v. Sampogne, supra, 533 F.2d at 767.

As a matter of reference, we might point out that very recently this court has considered whether and to what extent a witness, as opposed to a defendant, may question the legality of a wiretap authorized by a district judge under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., and the procedure to be followed when the witness undertakes to raise the question. United States v. Melickian, 547 F.2d 416 (8th Cir. 1977).

The case is remanded to the district court with directions to vacate that part of its order of June 4, 1976 which sentenced appellant to imprisonment.