author: TALBOT SMITH, Senior District Judge.

text:
    CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant, v. Fernando E. TYLER, Appellee.
    No. 72-1576.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1973.
    Decided Aug. 7, 1973.

      M. T. Woods, Sioux Falls, S. D., for appellant.
    Warren W. May, Pierre, S. D., for ap-pellee.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The controversy before us arises out of damages suffered by a train of the plaintiff Chicago and North Western Railway Company (hereafter the railroad) due to a washout of its tracks and subsequent derailment of its train.

On the night of June 9, 1971, the area involved suffered, in a short period, an extremely heavy downpour of rain. It was of such intensity that it was characterized by. one witness as the “hardest rain he had ever seen” in a lifetime in South Dakota and by another as one that might occur in a period from once in a hundred years to once in a thousand, depending upon the accuracy of the measurements made of the quantity of the downpour. As a result there was a widespread flooding of the area with water from many sources, including the Tyler dam, which breached. This dam had been built by Mr. Tyler on his ranch for the control of erosion and was located north of the line of the railroad. The train involved, traversing the flooded area, was derailed, a bridge torn out, and cars and locomotives severely damaged. The railroad brought this action against Mr. Tyler for damages to the extent of over $147,000. A jury verdict in defendant’s favor resulted, with subsequent appeal to this court.

The issues presented to us by the appellant relate solely to the court’s instructions, and they, in turn, relate to the substantive law of South Dakota respecting absolute liability (the so-called rule of Rylands v. Fletcher), nuisance, and so-called “Acts of God.”

It was the theory of the railroad that there was absolute liability on defendant Tyler’s part under the Rylands v. Fletcher rule, that the dam was negligently constructed and maintained, and (independently thereof) that it was a nuisance, making it unnecessary for the railroad to prove Tyler’s negligence, thus coming in full circle back to the theory upon which Rylands is based. The defendant, for his part, denied the applicability of the Rylands rule, under South Dakota law, to the facts at bar, denied his own negligence, asserted contributory negligence in the operation of the train, rejected the nuisance theory, and argued that an Act of God was solely responsible for the situation presented.

The District Court denied the applicability of the Rylands rule upon plaintiff’s motion for directed verdict, holding that although the South Dakota Supreme Court had considered the Rylands rule in two cases' it had neither adopted nor rejected such rule and, in any event, that the Rylands rule urged by the railroad was “not applicable to the facts in this situation.”

We agree. Although it has been said with respect to the English cases involving the Rylands rule that from such “welter of eases it is impossible to extract any consistent principle” the American view has, according to a distinguished student, reached the position that the rule is applied “only to the thing out of place, the abnormally dangerous condition or activity which is not a ‘natural’ one where it is.” Thus the storage of water in an area of sparse rainfall was held, in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936) to be “a natural or necessary and common use of the land” and we note, as well, the use of this concept by the South Dakota court in Midwest Oil Co. v. City of Aberdeen, supra, where, in denying absolute liability sought to be imposed upon the city as a result of a break in a water main, the court pointed out that “Water mains are in universal use in cities.” Similarly here. The land owner did no more than construct a dam, normally empty, across a dry watercourse for erosion purposes. The record discloses that the construction of dams in this area for similar purposes is, if not a common practice, certainly not unusual. “I am a soil conservation technician,” testified one witness. “My job is concerned with dams, drainage, irrigation dams, stock dams and the like, in Stanley and Hughes [site of the Tyler dam] counties. In the last few years we’ve built about 10 or 12 dams, up to as high as 100 to 150 dams a year.” Our review of the cases cited to us by both parties, as applied to the facts in the record before us, confirms the conclusion of the trial court that the Rylands rule as urged by the appellant, is not applicable hereto.

Plaintiff’s theory of nuisance is no more helpful to it. Plaintiff complains that the court erred in instructing the jury that the “maintenance or rebuilding of a dam across a natural drainway is not a nuisance which renders the owner absolutely or strictly liable and that liability depends upon negligence.” Corollary thereto were additional instructions set out in the margin hereof.

The term “nuisance” is a sort of legal grab bag. It was Thayer who said, with ample support, that “ ‘Nuisance’ is a good word to beg a question with. It is so comprehensive a term, and its content is so heterogeneous, that it scarcely does more than state a legal conclusion that for one or another of widely varying reasons the thing stigmatized as a nuisance violates the rights of others.” We see no need to attempt the exploration of the ramifications of the various “kinds” of nuisance. Suffice for our purposes that what is being urged by the railroad is that facet of nuisance described by Mr. Justice Cardozo, among others, as “absolute nuisance,” the situation where one acts at one’s peril, such as “one who digs a hole in a highway.”

But the difficulty with the plaintiff railroad’s attempt to impose under the “absolute nuisance” doctrine the liability denied under the Rylands doctrine of “absolute liability” is that both legal theories rest upon essentially the same doctrinal foundation. As we have seen, the absolute liability of Rylands rests upon an abnormal use in an inappropriate place. Similarly, it is clear that strict liability under the doctrine of absolute nuisance exists where an unnatural use of the land is made, involving an extreme hazard to the safety of the plaintiff in the use of his land. We are cited to no South Dakota cases as precedent but the principle is well illustrated by the Kansas case of Gilbert v. Davidson Const. Co., 110 Kan. 298, 203 P. 1113 (1922) wherein the defendant operated a rock crusher in the street close to plaintiff’s home, resulting in injury to and destruction of plaintiff’s household goods, clothing, and food. A jury verdict for damages was sustained on appeal, despite the lack of showing of negligence on defendant’s part, defendant insisting that it was merely “an ordinary rock crusher, operated in the ordinary way, and with the appliances usually employed.” In affirming, however, the court pointed out that from its location alone its operation constituted a nuisance and “The fact that the business itself is lawful, and the machine skillfully operated, did not give the defendant a right to put and use it in front of a residence where is [sic] necessarily would cause injury and loss.” The principle here involved was well expressed, with numerous citations of authority, in Prosser on Torts, 4th Ed. (1971) § 87: — “ [A] nuisance may arise where the defendant carries on in an inappropriate place an abnormally dangerous enterprise,” where it “necessarily involves so great a risk to its surroundings that its location may be considered unreasonable, and a strict liability may be imposed.” From what we have pointed out heretofore with respect to abnormal use under the Rylands doctrine it is clear that there was no more justification upon these facts for the court’s application of the absolute nuisance theory and the court did not err in the instruction given or in its denial of the requested instructions.

We find no error, under the facts before us, of the court’s instruction on Acts of God. The instruction given followed substantially that in Northwestern Bell Telephone Co. v. Henry Carlson Co., 165 N.W.2d 346 (1969) and correctly stated the South Dakota law applicable under the circumstances presented.

Under the view we have taken of the case, namely, that in consideration of the entire record, and the body of instructions taken as a whole, and in context, there was no error in the instructions given or refused, we find it unnecessary to discuss appellee’s argument that, in any event, the jury’s verdict might well have been grounded either upon the railroad’s own negligence in the operation of the train, or its failure to prove that defendant’s acts proximately caused plaintiff’s injury in view of the unusual weather conditions existing on the night in question.

Affirmed.

      . Judge Hanson, App. 44.

      . Dr. Arie Gaalswyk; App. 51-52.

      . “[W]ater was coming out of the hills and over the intersection . . . such that you couldn’t see the ditches as they were .covered with water and the water was gushing to the east.” Mr. Johnson, App. 46.

      . Fletcher v. Rylands, 3 H. & C. 774, 159 Eng.Rep. 737 (1865) reversed in Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff’d L.R. 3 H.L. 330 (1868).

      . As presented to the trial court the rule suggested was phrased in the following terms:
      “Your Honor, at this time the plaintiff moves the Court to direct the jury to return a verdict in favor of the plaintiff on tile issue of liability, reserving only the question of the amount of damages that might be awarded, for the reason and upon the grounds that in essence, the doctrine of the old case of Rylands v. Fletcher should here apply.
      In other words, that one who keeps upon his premises a dangerous instrumentality such as was involved in this case, in such location that it could, and apparently in all probability would, in some instances, get out of his control and cause damage, is absolutely liable therefor, and that he must so use his own property and instrumentalities as not to damage others, and that failing to do so, he becomes liable for all damages ensuing such failure, or in this instance, the breach of the dam.”
      Consonant therewith the plaintiff asserts error on the part of the court:—
      “In Refusing to Instruct That One Who So Collects and Keeps on His Land Anything Likely to Do Mischief if It Escapes Does So at His Peril and Is Answerable for All Damage Which Is the Natural Consequence of Its Escape.”

      . See Prosser, Nuisance Without Fault, 20 Texas L.Rev. 399, 426: “[Liability for what is called ‘nuisance’ very often rests upon a basis of strict liability, without proof of wrongful intent or negligence, and is not to be distinguished in any respect from the doctrine of Rylands v. Fletcher.”

      . Midwest Oil Co. v. Aberdeen, 69 S.D. 343, 10 N.W.2d 701 (1943), and Watson v. Great Lakes Pipeline Co., 85 S.D. 310, 182 N.W.2d 314 (1970).

      . Goodhart, Restatement of the Law of Torts, Vol. III, 89 U.Pa.L.Rev. 265 (1941).

      . Prosser, Law of Torts, 4th Ed. (1971) p. 511.

      . The court was here commenting upon Section 520 of the Restatement of the Law of Torts, the Section accepting the principle of Rylands but limiting it to an “ultrahazardous activity” of the defendant:
      “The present facts disclose water being sent through a ten-inch main in the manner now generally accepted for the purpose of furnishing a water supply to city dwellers. We think it clear that such a distribution of water does not constitute an ultrahazardous activity. The definition of an ultrahazardous activity as set forth in Section 520 of the Restatement of the Law of Torts is as follows:
      ‘An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.’
      Water mains are universally in use in cities, and to hold that a proper and reasonable use of such mains ‘necessarily involves a risk of serious harm to the person, land or chattels of others’ would be contrary to the experience of at least several generations.” 10 N.W.2d at 701-702.

      . Mr. Marvin Johnson, App. 32.

      . The court, it is argued, erred:
      “In Refusing to Instruct as Requested That if the Defendant’s Dam Was a Nuisance as Defined by South Dakota Law Defendant Would Be Liable for All Damage Caused by Such Nuisance Whether or Not He Was Negligent, Unless the Sole Cause of Damage Involved Was an Act of God; and That if a Nuisance Existed Due Oare and Precaution or Use of Ordinary Means to Avoid the Nuisance by the Defendant, Would Be No Defense.
      In Refusing to Instruct That if a Nuisance Existed the Exercise of Due Care and Precaution by Defendant or Use of the Ordinary Means to Avoid the Nuisance Were Not a Defense.”

      . The early development may be found in McRae, Development of Nuisance in the Early Common Law, 1 U.Fla.L.Rev. 27 (1948). See, also, Harper & James, The Law of Torts (1956), § 1.23 et seq.; Prosser, Law of Torts, 4th Ed. (1971) § 86 et seq.

      . Public Wrong and Private Action, 27 Ilarv.L.Rev. 317 (1914).

      . “An attempt to classify nuisance is . almost equivalent to an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights. It is very seldom, indeed, that even a definition of nuisance has been attempted, for the reason that, to make it sufficiently comprehensive, it is necessary to make it so general it is likely to define nothing.” Cooley, Torts, 1879 Ed., p. 566.

      . McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928).

      . The ruling is reminiscent of Mr. Justice Sutherland’s trenchant observation in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) that a nuisance “may be merely the right thing in the wrong place, — like a pig in the parlor instead of the barnyard.”

      . Cf. Keeton, Trespass, Nuisance, and Strict Liability, 59 Col.L.Rev. 457 (1959).


source: Caselaw Access Project

author: PECK, Circuit Judge. HARRY PHILLIPS, Chief Judge,

license: Public Domain

text:
    The TIMKEN COMPANY, Plaintiff-Appellee, v. LOCAL UNION NO. 1123, UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al., Defendants-Appellants.
    No. 72-1844.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1973.
    Decided July 6, 1973.
    Carl B. Frankel, United Steelworkers of America, AFL-CIO, Pittsburgh, Pa., for defendants-appellants; Rudolph L. Milasich, Jr., Pittsburgh, Pa., Bredhoff, Barr, Gottesman, Cohen & Peer, Wash-i ington, D. C., dayman, Jaffy & Taylor, Columbus, Ohio, on brief; Bernard Kleiman, Chicago, Ill., of counsel.
    John F. Buchman, Canton, Ohio, for plaintiff-appellee; John G. Ketterer, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on brief.

      Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and KENNEDY, District Judge.

       Honorable Cornelia G. Kennedy, United States District Judge for the Eastern District of Michigan, sitting by designation.

   PECK, Circuit Judge.

The complaint herein sought, under 29 U.S.C. § 185 and 9 U.S.C. § 12, an order vacating a labor arbitrator’s award. The award had been entered following a hearing on an employee’s grievance alleging an improper separation. The District Court vacated that award on the basis that the Arbitrator had exceeded his authority. We affirm.

Thad Tyson, an employee of the appel-lee-corporation and a member of the appellant union, was sentenced to serve a 117 day jail term by a Municipal Court Judge in Canton, Ohio, after Tyson pled guilty to two traffic offenses. On the next scheduled workday after Tyson began serving his sentence, Tyson’s wife reported to the appellee-employer that her husband would be unavailable for work. At a later date she advised that he was in confinement. There was testimony at the arbitration hearing that the wife was advised by the appellee’s general foreman that such absence in excess of seven consecutive workdays would result in a termination. On December 30, 1970, a separation notice was issued by the appellee-employer on the basis of Tyson’s unauthorized absence for seven consecutive workdays. For reasons not apparent from the record, Tyson was released from confinement on January 15, 1971, after serving only 29 days, whereupon he received notice of the separation. Responding to the separation notice, he filed a grievance on January 25, 1971. The grievance was submitted to an arbitrator who determined that the appellee-employer had wrongfully terminated the employment as a “voluntary quit” under their collective bargaining agreement. The agreement provides:

“An employee’s length of service shall be broken and credit for all previous service lost by:
“1. Voluntarily quitting the service of the Company (an unauthorized absence of seven (7) consecutive scheduled work- days shall be considered a voluntary quit); . . . . ”

The Arbitrator found the “voluntary quit” provision inapplicable to eases such as here where the employee had no intention to quit and had promptly notified the employer of his predicament. According to the Arbitrator, the “voluntary quit” provision was intended to apply to those cases where the employee’s whereabouts were unknown or the employee was in control of the circumstances and nevertheless absented himself from work for longer than the prescribed period. The Arbitrator ruled that the termination was a discharge un-’ der Article X of the bargaining agreement and that Tyson was entitled to reinstatement since the appellee-employer had failed to comply with Article X’s requirements regarding discharge. Article X provides:

“A. Before an employee is discharged, either in or outside of the department in which he works, the supervisor who is making the discharge will call the Union Steward or member of the Plant Grievance Committee, in this order, if available in the department in which the employee works at the time of the discharge, and will acquaint him with the circumstances of the case, and will also tell the employee, in the presence of the Union Representative, why the employee is being discharged.
“B. In the event an employee shall be discharged from his employment from and after the date hereof and he believes he has been discharged improperly, such discharge shall constitute a case arising under the method of adjusting grievances herein provided. In the event it should be decided that the employee is not guilty of the matter charged as the basis of his discharge, the Company shall reinstate such employee and pay full compensation at the employee’s regular rate of pay less any wages received from employment accepted in place of his former employment with the Company and/or unemployment compensation received during the period of back pay.
“C. In all such cases of discharge, the written grievance signed by the discharged employee shall be given to his immediate supervisor within ten (10) calendar days from the date of discharge. The discharge of an employee shall be final in any case where such written grievance is not filed within such ten (10) calendar day period. It is agreed that in handling any grievance involving the discharge of an employee, the provisions of Article IX — Adjustment of Grievances commencing with Step 3 shall be followed with the time limits as outlined below: . . . .”

In vacating the award, the District Court held that since the Arbitrator did not find that the employee’s absence was authorized by the employer, the Arbitrator was bound by the appellee-employer’s determination that the absence was unauthorized and should have sustained the ruling that the unauthorized absence was a voluntary quit within the terms of the collective bargaining agreement.

Considering first the aspect of judicial review of an arbitrator’s award, we note that the federal courts are severely restricted in their function by statute. See, 9 U.S.C. § 10. As a result, while a court is empowered to determine whether an arbitrator’s award exceeded the limits of his contractual authority (see, Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 (8th Cir. 1964)), it may not review the merits of an arbitration award. As stated in the leading case on the subject,

“It is the arbitrator’s construction that was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (I960).

Accordingly, unless the award manifests a clear infidelity to the arbitrator’s obligation of drawing the “essence” of the award from the bargaining agreement, a court must refuse to substitute its judgment on the merits for that of the arbitrator. Enterprise, supra, at 597, 80 S.Ct. 1358; see, also, Baldwin-Montrose Chemical Co. v. International Union, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, 383 F.2d 796 (6th Cir. 1967).

As the uncontroverted testimony of appellee’s personnel director indicates, the appellee had maintained a consistent policy of categorically denying authorized absences to employees confined to jail. However, the Arbitrator went beyond this testimony and the record and concluded that there was discriminatory conduct by the appellee in denying authorizations in the jail confinement situations, while apparently maintaining a liberal authorization policy in the instance of an employee’s illness or injury. According to the Arbitrator, this inconsistency was sufficient to invalidate the lack of authorization in Tyson’s case and cause the matter to be considered a discharge.

We conclude that the Arbitrator exceeded his authority in finding as he did. The “voluntary quit” provision of the agreement specifically applies to circumstances of “an unauthorized absence for seven (7) consecutive scheduled work days.” Consequently there was no need to go outside the record and consider other definitions of the term “quit.” A collective bargaining agreement is after all a contract and the arbitrator is limited to the interpretation and application of that contract. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed. 898 (1964). Particularly where an agreement provides definitions of its own terms, the arbitrator clearly exceeds his own authority by seeking conflicting definitions outside the record.

We recognize that, as in many contracts, there are far too many unforeseeable contingencies to require reliance on the collective bargaining agreements as the exclusive source of rights and duties. All contracts including collective bargaining agreements, are executed in the context of common law and legislation which govern the rights and duties of the contracting parties. A recognized law of the shop operates to provide a context for the agreements if only because of the “institutional characteristics and the governmental nature of the collective bargaining process.” Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-1500 (1959). Here the Arbitrator has only referred to one 1960 arbitration award which appears of questionable application and has made no reference whatsoever to shop practices.

In addition, the Arbitrator opined that the purpose of the “voluntary quit” provision is to discipline employees who abandon their jobs, even though the record does not contain any evidence of the intent or purpose of the parties in placing the provision in the agreement. The term “unauthorized” as used in the subject provision may encompass such a meaning, but the record offers nothing to show that its meaning was purposely restricted by the parties to such a rationale. In the absence of evidence indicating that the parties to this contract intended to restrict the scope of the term “unauthorized,” we conclude that the Arbitrator exceeded his authority in stating the provision’s purpose without support in the record. Such a conclusion is particularly merited since the agreement contains clauses, standard language today, foreclosing the arbitrator from substituting his discretion for the company’s and from modifying the language of the agreement.

Considering, then, indications of the parties’ intentions such as language and context, we conclude that the Arbitrator’s award not only cannot be rationally deduced from the agreement but also manifests clear infidelity to the arbitrator’s obligation to draw the essence of the award from the bargaining agreement.

The judgment of the District Court is affirmed.

HARRY PHILLIPS, Chief Judge,

(dissenting).

I respectfully dissent. I would hold that the arbitrator’s decision was based upon his interpretation of the collective bargaining agreement. As such, it would be inappropriate for this Court to affirm the judgment of the District Court vacating the arbitration award merely because we may disagree with the analysis made by the arbitrator. See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Timken Roller Bearing Co., 324 F.2d 738, 740 (6th Cir. 1963).

The decision of the District Court, in my opinion, should be reversed.

      . The Enterprise case, the third of the famous Steelworkers trilogy, outlined the proper role of the judiciary in labor arbitration cases.

      . In this regard, we intimate no view as to the merits, but, rather, merely notice that even though the Arbitrator could have properly utilized sources outside the agreement for guidance and context, the dearth of such information in his opinion makes it difficult to contradict the unambiguous language of the agreement. It is axiomatic that if the arbitrator undertook to, in effect, amend the contract, to substitute his own discretion for that of the parties or to dispense “his own brand of industrial justice,” the enforcement of the award must be denied. See Enterprise, supra; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).


author: HUFSTEDLER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Mark Lawrence ALTER, Appellant.
    No. 73-1121.
    United States Court of Appeals, Ninth Circuit.
    July 23, 1973.

      Susan B. Jordan, Atty. (argued), of Cummings & Jordan, San Francisco, Cal., Doron Weinberg (argued), of Stender & Lapides, San Francisco, Cal., for appellant.
    Robert L. Keuch (argued), A. William Olson, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., James L. Browning, Jr., U. S. Atty., David P. Bancroft, Asst. U. S. Atty., San Francisco, Cal., William M. Piatt, Dept, of Justice, Washington, D.C., for appellee.
   OPINION

Before MERRILL, HUFSTEDLER, and GOODWIN, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Alter appeals from a civil contempt adjudication stemming from his refusal to answer three questions asked by a special federal grand jury investigating potential violations of a potpourri of federal statutes. We vacate and remand.

Of the many issues presented on appeal, we reach four:

1. Did the district court abuse its discretion by compelling Alter to respond to contempt charges without affording him a reasonable time adequately to prepare his defense and without giving him the uninhibited adversary hearing required by 28 U.S.C. § 1826(a) and Rule 42(b) of the Federal Rules of Criminal Procedure?

2. Were Alter’s averments of illegal electronic surveillance of his counsel adequate to compel Government affirmation or denial under Gelbard v. United States (1972) 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179.

3. Was the Government’s response to Alter’s averments that the Government had placed Alter under illegal electronic surveillance sufficient to avoid an evi-dentiary hearing directed to the issue?

4. Was use immunity granted to Alter pursuant to 18 U.S.C. § 6002 non-coextensive with his Fifth Amendment right against self-incrimination because the immunity conferred failed to protect him from prosecution for false statements under 18 U.S.C. § 1001, based on an interview with an F.B.I. agent prior to his grand jury appearance?

Alter first appeared before the grand jury on November 13, 1972. Invoking his Fifth Amendment privilege against self-incrimination, he declined to answer several questions. On January 16, 1973, the Government applied for and was granted an order conferring on him use and derivative use immunity pursuant to 18 U.S.C. §§ 6002, 6003. Alter unsuccessfully objected to the immunity application on several grounds, including inter alia his lack of protection from, potential prosecution based on statements he had made to the F.B.I. long before his grand jury appearance.

Alter was recalled on January 17, 1973. The grand jury forbade him to take notes and limited him to three minutes for consultation with counsel. Citing the restrictions imposed by the grand jury, he refused to answer, and a procedural skirmish followed. The grand jury had previously sought and been given secret instructions about their authority to impose restrictions on the witness. When Alter learned of these instructions, he moved the district court to disclose the special instructions and renewed his earlier motions to disclose all of the court’s instructions to the grand jury and to propound his requested instructions to the grand jury. The district court disclosed the general and special instructions but denied the other motions. The Government filed an affidavit at 4:45 p. m. on January 17, 1973, stating that Alter continued his refusal to cooperate and asking for the issuance of a contempt order. Oral argument continued to the conclusion of the court day. •

On January 18, 1973, the grand jury again asked Alter three questions, in substance, as follows:

1. Did you acquire a passenger car registration in Illinois on February 17, 1970?

2. Did you ever visit a named San Francisco address?

3. Do you have any notion as to why identification bearing your name might have been located at that San Francisco address ?

He declined to answer on several grounds, including claimed illegal electronic surveillance of himself and his counsel, his Fifth Amendment right, claimed prejudice from failure to disclose all of the court’s instructions to the grand jury and refusal to give his requested instructions, a challenge to the composition of the grand jury, and the impropriety of the third question. At the Government’s request and over Alter’s multiple objections, the court held a contempt hearing within 45 minutes after Alter’s declination to respond to the three questions. The Government filed an affidavit purporting to disclaim any electronic surveillance of Alter, but it filed no response to Alter’s affidavits averring illegal electronic surveillance of Alter’s counsel. The district court, without an evidentiary hearing, forthwith held Alter in contempt, and this appeal followed.

I.

The statutory authority for the contempt adjudication is 28 U.S.C. § 1826(a) which, in pertinent part, 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 . . . , the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement . . . until such time as the witness is willing to give such testimony . . . .” (Emphasis added.)

The word “summarily” evokes the concept of direct criminal contempt, but the Supreme Court has effectively banished that impression. The Court’s interpretation of section 1826(a) emerges from three cases: Gelbard v. United States (1972) 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179, decided after section 1826(a) was enacted; Shillitani v. United States (1966) 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622, and Harris v. United States (1965) 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240, both decided before the passage of section 1826(a).

The law of contempt has long been a morass because the contempt label has been pinned to highly diverse actions and offenses. Before Shillitani and Harris, confusion was rampant about the nature of contempts emerging from grand jury witnesses’ refusals to respond to questions that they had been ordered to answer. Depending upon the characterization of such contempts, the recalcitrant witness might be subject (1) to summary punishment, (2) to a criminal trial, with all of the procedural safeguards usually attendant thereon, including a right to trial by jury, or (3) to civil procedures, sans jury trial, ordinarily available in civil litigation.

In Harris, an immunized grand jury witness, asserting his Fifth Amendment privilege against self-incrimination, refused to answer the grand jury’s questions after the court ordered him to do so. The court held him in direct criminal contempt, invoking the summary procedure prescribed by Rule 42(a) of the Federal Rules of Criminal Procedure. The Supreme Court reversed, holding that summary contempt (Rule 42(a)) was limited to “‘misbehavior’” in the “ ‘actual presence of the court’ ” (382 U.S. at 164, 86 S.Ct. 352) and that the “normal procedure” for compelling a recalcitrant grand jury witness to testify was set forth in Rule 42(b) of the Federal Rules of Criminal Procedure. (382 U.S. at 165-167, 86 S.Ct. 352.)

The question whether a grand jury witness’ contempt was civil or criminal was not reached until Shillitani. In Shillitani two immunized grand jury witnesses, like Harris, refused to answer questions and were imprisoned until they purged themselves. Both witnesses were subjected to Rule 42(b) proceedings; both demanded and were refused trial by jury. The Supreme Court held that the contempt should be characterized as civil for the purpose of determining the right to jury trial.

Then came Gelbard, which involved three grand jury witnesses — Gelbard who appeared before a federal grand jury in California and Egan and Walsh who appeared before a Pennsylvania grand jury. Each witness claimed that illegal wiretapping infected his interrogation before the grand jury and that the infection supplied “just cause” under section 1826(a) to refuse to answer the grand jury’s questions. Each was held in contempt from which appeal was taken.

The Government admitted the interceptions of Gelbard; it neither admitted nor denied interceptions affecting Egan and Walsh. The Ninth Circuit affirmed Gelbard’s contempt adjudication on the ground that he had no standing to raise the issue in a preindictment proceeding. However, the Third Circuit reached a contrary result, overturning the Egan and Walsh contempts. The Supreme Court agreed with the Third Circuit. It held that wiretapping, which was illegal under 18 U.S.C. § 2515 and which could affect the interrogation of a grand jury-witness, was “just cause” under 28 U.S. C. § 1826(a) for the witness’ refusal to answer the grand jury’s questions after the court ordered response.

At the threshold of Gelbard, the Court said that section 1826(a) was “intended to codify the existing practice of the federal courts,” citing portions of its legislative history and Shillitani (408 U.S. at 42-43 n. 1, 92 S.Ct. at 2358). The unmistakable import of these observations is that section 1826(a) has no effect upon the procedural ground rules the Court had laid in cases anteceding that the enactment of the statute — rules which expressly forbade summary proceedings for such contempts.

A cloud on the procedural horizon is the harmonizing of Shillitani and Harris. Neither Gelbard nor Shillitani mentions Harris, although Shillitani arose from a Rule 42(b) proceeding. Does Shillitani’s characterization of grand jury contempt as “civil” for the purpose of determining a right to jury trial mean that Harris’ application of Rule 42(b) of the Federal Rules of Criminal Procedure to grand jury witnesses silently fell? We think not. Shillitani and Harris are consistent unless the labels “criminal” and “civil” are immutable legal compartments, forever hermetically sealed from each other, embodying mutually exclusive procedural and constitutional rules.

The Supreme Court has abandoned the idea that actions or proceedings must be wholly civil or wholly criminal and that the choice of one label inexorably sets the case on a single procedural or constitutional track. On the contrary, the Court has repeatedly recognized that many kinds of cases are hybrids and that, even in those in which criminal aspects overshadow the civil, flexible due process standards permit variations in procedure designed to accommodate real differences among classes of cases. Illustrations abound, one of the more recent of which is Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, according a parolee in a parole revocation proceeding “such procedural protections as the particular situation demands” (id. at 481, 92 S.Ct. at 2600), but not “the full panoply of rights due a defendant” in an ordinary criminal prosecution (id. at 480, 92 S.Ct. at 2600). Cf. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 1973).

Following the teaching of the Supreme Court drawn from this mosaic of cases, we conclude that a proceeding in contempt to compel a federal grand jury-witness to testify is civil enough to foreclose his claim that he has a constitutional right to trial by jury (Shillitani) and criminal enough to require the application of Rule 42(b) (Harris), a conclusion we reached less elaborately in United States v. Dinsio (9th Cir. 1972) 468 F.2d 1392. It follows, therefore, that Alter was entitled to notice prescribed by Rule 42(b) and to a reasonable time to prepare his defense, i. e., to show “just cause” for refusing to respond.

The determination of how much time is reasonable is committed to the sound discretion of the district court. As we learned from Harris, however, the proceedings cannot be conducted summarily, and in no event can the time be reduced below a minimum needed adequately to prepare a defense. A reasonable time will vary according to the circumstances of each case. When the alleged contemnor’s defense raises legal issues of some complexity or there is an indication that an evidentiary hearing may be required to resolve factual issues, the five-day notice period prescribed by Rule 45(d) of the Federal Rules of Criminal Procedure (Rule 6(d) of the Federal Rules of Civil Procedure) should be adopted as the standard, absent a showing by the Government of some compelling need to shorten time and absent a showing by the contemnor of some reason why a longer time is needed to prepare the defense. (Compare In re Grand Jury Proceedings (Egan), supra note 7, 450 F.2d at 201 n. 4.)

Compelling need for reducing time is not shown by the fact alone that the alleged contemnor is a witness in a pending grand jury investigation; were it otherwise, a grand jury witness could be routinely denied standard notice. Orderly presentation of evidence to a grand jury, without undue delay and interruption, is an important consideration in the effective administration of federal criminal justice. That interest must nevertheless yield to the paramount due process right of a potential contemnor to have adequate notice and a fair opportunity to defend himself. In some cases all the important issues will have been raised by the time of the immunity hearing, and it will be apparent that the actual contempt can raise no new issues. If so, the witness may have had adequate time to prepare even though very little time elapses between the alleged contempt and the contempt hearing. Cf. United States v. Weinberg (9th Cir. 1971) 439 F.2d 743. The burden for this showing likewise falls on the Government.

Alter made his requisite showing that the legal issues were not simple and that full resolution of the controversy could require an evidentiary hearing. The Government, on the other hand, gave no reason for haste. Under these circumstances, the failure of the district court to give him five days within which to prepare his defense was an abuse of discretion.

Moreover, the hearing Alter received was not the “uninhibited adversary hearing” contemplated by section 1826(a). (United States v. Dinsio, supra, 468 F.2d at 1394.) The hearing was largely confined to the perfunctory reception of affidavits, a round of oral argument, and some offers for the record. That “uninhibited adversary hearing” recognized by Harris and most recently reaffirmed by Dinsio requires, at the very least, that a witness be allowed to probe all nonfrivolous defenses to the contempt charge. The constitutional guarantee of due process of law means more than a silhouette of justice; it requires that judicial determinations affecting the freedom of the individual be openly arrived at after full, fair, and vigorous debate on both sides of all substantial issues. “ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ . . . The hearing must be ‘at a meaningful time and in a meaningful manner.’ ” Goldberg v. Kelly (1970) 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (citations omitted); cf. Morrissey v. Brewer, supra; Fuentes v. Shevin (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349.

A careful review of the entire record leads us to conclude that Alter was deprived of a meaningful opportunity to present his defense. The court exhibited exemplary courtesy toward the parties. To a large extent the court’s decision to limit the contest resulted from an erroneous view of some of the complex and novel legal questions presented —error which is unlikely to be repeated on remand.

II.

We are urged to decide whether, in the wake of Gelbard, a grand jury witness has standing to claim as a defense to civil contempt under 28 U.S.C. § 1826(a) that his counsel was subjected to illegal electronic surveillance. The threshold question, however, is whether appellant’s allegations of illegal surveillance were adequate to require the Government to affirm or deny.

Appellant submitted three affidavits bearing on the possible existence of illegal interception of telephone conversations of his counsel. Doron Weinberg, one of appellant’s attorneys, alleged that (1) he had been representing Alter continuously since September 30, 1972; (2) on the afternoon of November 6, 1972, he attempted to place a telephone call from his office (telephone numbers and address mentioned); (3) after dialing and waiting several seconds for a connection, he “detected only a ‘hollow’ sound, as though the line were open” and after several more seconds, he “heard what sounded distinctly like a human cough”; (4) he and his associate, Marvin Stender, “clearly heard a short series of clicking sounds, like a receiver being lifted and put down”; (5) at the time no one,was using any extension in the office; (6) on the afternoon of November 9, 1972, a call again did not go through, and after several seconds’ wait, “there was a noise very much like that of a person clearing his or her throat”; (7) the phone then “clicked and the line went dead”; (8) based on these two incidents, he believed that “there is some form of electronic interference on the telephone at my office.”

A second affidavit by Weinberg indicated that he and his cocounsel, Ms. Jordan, had freely discussed the case with certain named counsel (with addresses and telephone numbers) who were party to the information protected by the attorney-client privilege. He further alleged that any violation of the attorney-client privilege through electronic surveillance of any of the named counsel would violate his attorney-client relationship with Alter. The Stender affidavit corroborated the substance of Weinberg’s first affidavit as to a “clicking sound,” “what sounded like a receiver being picked up and put down,” and the fact that no one was using another phone in the office at that time.

The second Alter affidavit makes allegations of unlawful electronic surveillance conducted on his premises. Discussing two different telephone conversations, he mentions “successive, rapid clicking sounds.” A friend of his was asked by the F.B.I. about an alleged telephone conversation between Alter and herself on a specific date. The F.B.I. arrived at a certain recreation site just as Alter and his companions were departing. The arrangements had been made by telephone. The timing of the F.B.I.’s arrival led him to conclude that they were not followed to the site, but that his “whereabouts were known because of the telephone arrangements.” Alter made no specific allegations of electronic surveillance of his attorneys or his conversations with his attorneys.

We have recently confronted allegations by grand jury witnesses that their attorneys had been “subject to electronic surveillance by someone.” In United States v. Fitch & Meisel, supra note 12, 472 F.2d 548, we upheld the' district court’s denial of their claim and apparent refusal to hold a hearing on the matter and noted that “[t]he vague and speculative affidavit of counsel required no more” than the Government’s affidavit denying monitoring of any conversations of counsel talking with the witnesses (id at 549).

Fitch & Meisel relies upon Cohen v. United States (9th Cir. 1967) 378 F.2d 751, which discusses the requisite specificity of a defendant’s allegations of illegal monitoring of telephone calls to warrant an evidentiary hearing on a motion to suppress under Rule 41(e) of the Federal Rules of Criminal Procedure. Cohen announced a test that provides some guidance in the related area of grand jury witness allegations of unlawful electronic surveillance:

“The question is whether the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented. If the allegations are sufficient and factual issues are raised, a hearing is required.” 378 F.2d at 761.

A.

We now add some flesh to the bones of the Cohen test. To raise a prima facie issue of electronic surveillance of counsel for a grand jury witness, the affidavit(s) or other evidence in support of the claim must reveal

(1) the specific facts which reasonably lead the affiant to believe that named counsel for the named witness has been subjected to electronic surveillance; •

(2) the dates of such suspected surveillance ;

(3) the outside dates of representation of the witness by the lawyer during the period of surveillance;

(4) the identity of the person(s), by name or description, together with their respective telephone numbers, with whom the lawyer (or his agents or employees) was communicating at the time the claimed surveillance took place; and

(5) facts showing some connection between possible electronic surveillance and the grand jury witness who asserts the claim or the grand jury proceeding in which the witness is involved.

When these elements appear by affidavit or other evidence the Government must affirm or deny illegal surveillance pursuant to 18 U.S.C. § 3504(a). (See Beverly v. United States (5th Cir. 1972) 468 F.2d 732.)

The witness does not have to plead and prove his entire case to establish standing and to trigger the Government’s responsibility to affirm or to deny. To obtain a hearing he need not identify the electronic intruder as the Government before he can compel a response. We do insist, however, that he make a prima facie showing that good cause exists to believe that the witness’ counsel was subjected by someone to illegal surveillance in connection with the grand jury proceeding in which the witness is involved. We thus seek to create a sound balance among the competing demands of constitutional safeguards protecting the witness and the need for orderly grand jury processing. We do not overlook the intrinsic difficulty in identifying the owner of an invisible ear; nor do we discount the need to protect the Government from unwarranted burdens in responding to ill-founded suspicions of electronic surveillance. We agree with Beverly that the initial task of striking the balance between the conflicting and sensitive interests at stake properly lies in the district court. (Beverly v. United States, supra at 752.)

Although the affidavits Alter submitted to support his claim that his lawyer had been subjected to illegal surveillance were not vague and did embrace many of the elements of our test, the affidavits did not cover all of the bases that we require to be touched. If the grand jury pursues the investigation, he will have an opportunity on remand to correct the deficiencies.

B.

In answer to Alter’s own affidavits filed to support his claim that he had been subjected to illegal surveillance, the Government filed a form affidavit signed by Special Attorney Dierker. Alter challenged the legal sufficiency of the affidavit on three grounds: (1) the critical statements were conclusions based on multiple hearsay, (2) the agencies checked were too limited, and (3) the affidavit did not reveal the period covered by the investigation. Without specifically ruling on Alter’s objections, or providing an opportunity to examine the affiant or to offer evidence, the court decided that the filing of the Dierker affidavit ended the inquiry. The decision was erroneous.

Alter’s affidavits were sufficiently concrete and specific to make a prima facie showing that on the occasions described someone was interfering with his telephone calls and that the F. B.I. was involved. The burden was then on the Government squarely to affirm or to deny those charges. (Cf. United States v. Fannon (7th Cir. 1970) 435 F.2d 364.) The Dierker affidavit did neither.

Mr. Dierker speaks in eonclusory terms. He supplies no information whatever about the identity of the person or persons with whom he communicated, the substance of his inquiries, or the substance of the replies. He states no facts from which the court could conclude that the six agencies he lists are the only governmental agencies that could have been involved in electronic surveillance. Nor does the affidavit reveal the dates of claimed surveillance to which the inquiries were addressed. If any of the conclusions in the affidavit were later proved wrong, it would be virtually impossible to establish that the affidavit was perjured. (Cf. Bronston v. United States (1973) 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568.)

Upon remand, the Government may file a responsive factual, unambiguous, and unequivocal affidavit. (Cf. Alderman v. United States (1969) 394 U.S. 165, 180-185, 89 S.Ct. 961, 22 L.Ed.2d 176.)

III.

Alter argues that the immunity given under 18 U.S.C. § 6002 is unconstitutional as applied to him, as non-coextensive with his Fifth Amendment privilege against self-incrimination. The exception built into section 6002, he asserts, exposes him to potential prosecution for violating 18 U.S.C. § 1001 (willfully false statements to government department or agency) if the statement given to the F.B.I. a year before his grand jury appearance should prove to be false. As we construe section 6002, his fear is unfounded, and his constitutional attack fails.

Section 6002 provides that a grand jury witness given use and derivative use immunity cannot rely on his privilege against self-incrimination to refuse to testify,

“but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” (Emphasis added.)

We accept the Government’s construction of section 6002 as it applies to Alter:

“[T]he phrase beginning with ‘or otherwise’ as underlined above, modifies the meaning of the preceding quoted phrase beginning with ‘except.’ The concluding phrase indicates that the compelled testimony may be used in prosecutions for giving false statements in response to the command to testify. But for the ‘exception’ quoted here, all testimony given in compliance with the command to testify cannot be used, as proscribed under the preceding language of the immunity grant. . . . [T]he testimony which appellant might have given could not be used against him in any prosecution for any false statements made to anyone outside of the grand jury.”

Kastigar v. United States (1972) 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 buttresses this conclusion. In holding that use and derivative use immunity under 18 U.S.C. §§ 6002 and 6003 is coextensive with the Fifth Amendment privilege against self-incrimination, the Court noted that the Fifth Amendment “protects against any disclosure that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Id. at 445, 92 S.Ct. at 1656 (footnote omitted). Immunity “prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” Id. at 453, 92 S.Ct. at 1661. Accordingly, in the event of a prosecution for making a false statement to the F.B.I., none of Government’s proof could be based upon direct or indirect evidence gained by virtue of Alter’s immunized grand jury testimony. The likelihood for abuse is minimized by “the heavy burden” Kastigar places on the Government to prove that “all of the evidence it proposes to use was derived from legitimate independent sources.” Id. at 461-462, 92 S.Ct. at 1665 (footnote omitted).

IV.

On several occasions appellant requested that the court give nine specific instructions to the grand jury on its role and powers and on the rights of witnesses. He also asked for and was initially denied a copy of the charge given to the grand jury. He was eventually furnished with a transcript of the “supplemental instructions” and allowed to read the general charge to the grand jury. Alter’s complaint about instructions to the grand jury dwindles to a protest about delay in responding to his requests for the court’s general and special grand jury instructions. The record supplies no basis for us to infer that he was prejudiced in presenting his contempt defense either by delay in knowing the original charges to the grand jury or by the refusal to give his requested instructions to the grand jury. Under these circumstances, we decline to reach the merits of his grand jury instruction arguments.

The order is vacated, and the cause is remanded for further proceedings consistent with the views herein expressed.

      . These statutes included : 18 U.S.C. § 1001 (false statements), 7 U.S.C. § 2023(b) (unauthorized acquisition of food coupons), 26 U.S.C. § 5861 (1968 Gun Control Act), 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. § 2113 (bank robbery and incidental crimes), 50 U.S.C.App. § 462(b) (6) (selective service), 18 U.S.C. § 842, et seq. (manufacture and possession of explosives), and 18 U.S.C. § 371 (conspiracy).

      . The special instructions concerned the authority of the grand jury to restrict consultation with counsel and to forbid note taking. The propriety of those instructions is not challenged on appeal.

      . Because we vacate on other grounds, we do not reach the question of standing of a grand jury witness to challenge the racial and ethnic composition of the grand jury or the propriety of the third question.

      . Compare Fed.R.Crim.P. 42(a) : “A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

      . “A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. . . . ”

      . United States v. Gelbard (9th Cir. 1971) 443 F.2d 837.

      . In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Egan) (3d Cir. 1971) 450 F.2d 199; In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Walsh) (3d Cir. 1971) 450 F.2d 231.

      . The Third Circuit in Egan apparently reached a similar conclusion, although its decision did not turn upon the procedural antecedents of the contempt. The court noted the unseemly haste which marked the contempt adjudication and added: “No request was made by the Government, and no explanation was given for not making such request to shorten the 5-day requirement of Rules 5(a), 5(b) and 6(d) of the Federal Rules of Civil Procedure.” (450 F.2d at 200-201, 201 n. 4. Citation omitted.)

      . E. g., contempt: Bloom v. Illinois (1968) 891 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (jury trial guaranteed for serious criminal contempts); Cheff v. Schnackenberg (1966) 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (jury trial not guaranteed for petty criminal contempts); juvenile: McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (rejecting the “wooden approach” of decision by the “civil” or “criminal” label, 403 U.S. at 541, 91 S.Ct. 1976, and holding that due process did not compel states to grant jury trials to juveniles charged in delinquency proceedings) ; In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (juvenile delinquency proceedings are sufficiently criminal to require proof beyond a reasonable doubt) ; In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (such proceedings are sufficiently criminal to require minimum criminal due process guaranties) ; mental illness: Specht v. Patterson (1967) 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (whether denominated civil or criminal, commitment of the mentally ill is subject to the safeguards of the due process and equal protection clauses).

      . Contempt proceedings against grand jury witnesses can and often do present complex issues of law and fact in which constitutional questions of major import are a concomitant. (E. g., Branzburg v. Hayes, In re Pappas, and United States v. Caldwell (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626; Bursey v. United States (9th Cir. 1972) 466 F.2d 1059.) A failure to enlarge notice time when confronted with serious and challenging issues would be an abuse of discretion. A fortiori a reduction of standard notice time in complicated cases would be an abuse of discretion.

      . Cf. Brotherhood of Locomotive Firemen & Enginemen v. United States (5th Cir. 1969) 411 F.2d 312.
      Solicitude for the due process rights of contemnors is hardly neoteric. In Cooke v. United States (1925) 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767, Chief Justice Taft said:
      “Due process of law ... in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of tlie offense and in mitigation of the penalty to be imposed.” (Citations omitted.)
      The concern is unabated. E. g., United States v. Sun Kung Kang (9th Cir. 1972) 468 F.2d 1368 (indigent contemnor’s right to counsel); Bloom v. Illinois (1968), supra note 9 (explicating the rules governing the right to trial by jury in criminal contempts); In re Green (1962) 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (contempt conviction in state court without a hearing and without opportunity to establish legal defense violates the due process clause of the Fourteenth Amendment); In re Oliver (1948) 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (state contempt conviction held in secret and without reasonable notice of the charge, right to examine witnesses, right to testify in one’s own behalf, and right to counsel constitutes a denial of due process of law).

      . In re Russo (9th Cir. 1971) 448 F.2d 369 and United States v. Robinson (9th Cir. 1971) 449 F.2d 925 are consistent with our holding; in both cases, the contempt hearing was preceded by a week’s notice. United States v. Fitch & Meisel (9th Cir. 1973) 472 F.2d 548 and United States v. Taulbee & Taulbee (9th Cir. 1973), 476 F.2d 804 concluded that lesser notice was adequate, but the circumstances are not disclosed by the opinions.

      . The first Alter affidavit makes detailed allegations of physical surveillance and harassment by the F.B.I. over a period of one year to intimidate and coerce him into giving information.

      . The Fitch & 2Ieisel panel expressly did not reach the question of “whether the limited discovery of electronic surveillance now allowed at the grand jury stage should extend to all conversations by the attorney of the witness.” (472 F.2d at 549 n. 3). The apparent Government denial in Fitch & Meisel did not encompass conversations of the witnesses’ counsel with persons other than the witnesses concerning matters related to their attorney-client relationship.

      . Evidentiary hearings are not required in absence of solid allegations that raise a genuine issue concerning the fact of surveillance. Cf. Nardone v. United States (1939) 308 U.S. 388, 60 S.Ct. 266, 84 L.Ed. 307.

      . “In any trial, hearing, or other proceeding in or before any . . . grand jury . . . of the United States' — •
      “(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. . . . ”
      Although the Government here objects to the witness’ standing on statutory or Fourth Amendment grounds, it has in its brief conceded standing on Sixth Amendment grounds. Cf. Beverly v. United States (5th Cir. 1972) 468 F.2d 732, 750-751; In re Tierney (5th Cir. 1972) 465 F.2d 806, 812.

      . “ROBERT A. DIERKER being first duly sworn states:
      1. That I am an attorney with the United States Department of Justice, Internal Security Division, temporarily assigned to assist the United States Attorney for the Northern District of California, and I am authorized to represent the Government in grand jury investigations and judicial proceedings ancillary thereto;
      2. That I caused an official inquiry to be made with the appropriate Federal Government agencies to determine if there has been any electronic surveillance of the conversations of MARK LAWRENCE ALTER. The federal agencies to whom this inquiry was directed are:
      a. Federal Bureau of Investigation
      b. Bureau of Narcotics and Dangerous Drugs
      c. United States Secret Service
      d. Internal Revenue Service
      e. Bureau of Customs
      f. Bureau of Alcohol, Tobacco and Firearms
      g. United States Postal Service
      3. That based upon the results of the said inquiry I state that there has been no electronic surveillance occurring on premises known to have been owned, leased, or licensed by the said MARK LAWRENCE ALTER;
      4. I further state that based upon the said inquiry there has been no electronic surveillance of any kind of any conversations of the said MARK LAWRENCE ALTER at any locations;
      5. That I know the identity of all the sources of information upon which the questioning of the said MARK LAWRENCE ALTER is based and no questions asked are the result of electronic surveillance of the said MARK LAWRENCE ALTER.
      /s/
      ROBERT A. DIERKER
      Special Attorney
      United States Department of Justice”

      . Similar affidavits have been criticized by the Third and Fifth Circuits. In re Horn (3d Cir. 1972) 458 F.2d 468; Beverly v. United States, supra, 468 F.2d 732.

      . We do not attempt to anticipate the content of a new affidavit or to describe the procedure by which Alter will be given the meaningful opportunity to which he is entitled to test its legal and factual sufficiency. (Cf. In re Tierney, supra, 465 F.2d 806.)

      . These instructions focused on :
      (a) the power and authority of the grand jury to question witnesses and hear evidence as emanating from the court;
      (b) the nature and extent of this power;
      (c) the role of the United States Attorney as an assistant to the grand jury;
      (d) a witness’ right to assert the Fifth Amendment prior to the grant of immunity, the lack of counsel in the grand jury room, and the legal effect of an immunity grant.

      . Alter was entitled to know the content of the court’s charges to the grand jury. The proceedings before the grand jury are secret, but the ground rules by which the grand jury conducts those proceedings are not. B. g.t U. S. Judicial Conference Committee on the Operation of the Jury System, Handbook for Federal Grand Jurors 10 (1971).


author: EDWARDS, Circuit Judge.

text:
    Edwin A. SNOW and Helen B. Snow, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-2019.
    United States Court of Appeals, Sixth Circuit.
    Argued April 18, 1973.
    Decided July 17, 1973.
    Burgess L. Doan, Cincinnati, Ohio, for petitioners-appellants; Harold W. Walker, Cincinnati, Ohio, on brief.
    Irell & Manella, Lawrence M. Stone, Ronald L. Blanc, Rudolph R. Loncke, Los Angeles, Cal., for amici curiae.
    Jane M. Edmisten, Tax Div., Dept, of Justice, for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Attys. Tax Div., Dept, of Justice, Lee H. Henk-el, Jr., Chief Counsel, I. R. S., Washington, D. C., on brief.
    Before EDWARDS and MILLER, Circuit Judges, and LAMBROS,  District Judge.

       Honorable Thomas D. Lambros, United States District Judge, Northern District of Ohio, sitting by designation.

   EDWARDS, Circuit Judge.

Petitioners (joint taxpayers) seek review of the decision of the United States Tax Court, reported at 58 T.C. 585 (June 30, 1972). The Tax Court determined a deficiency of income taxes due from taxpayers in the amount of $6,247 for the taxable year of 1966 by denying that a deduction of $9,195.11 claimed by Edwin A. Snow was properly claimed as research and experimental expenditures within the scope of Section 174 of the Internal Revenue Code of 1954. In applicable part this section says:

§ 17If. Research and experimental expenditures

(a) Treatment as expenses—
(1) In general. — A taxpayer may treat research or experimental expenditures which are paid or incurred by him during the taxable year in connection with his trade or business as expenses which are not chargeable to capital account. The expenditures so treated shall be allowed as a deduction. 26 U.S.C. § 174(a)(1) (1970).

The deductions claimed were for proportionate loss suffered by Snow as a partner in the Burns Investment Company, which was engaged in the research and development of a trash burner device.

Snow invested $10,000 in the Burns Investment Company and had made similar investments in two other companies (Courier Enterprises and Echo Development Company) in which an inventor named Trott was the actual principal. In relation to Burns Investment, however, Trott invested no cash. As a consequence, Trott was not entitled (under his agreement with other shareholders) to share in any tax deduction derived from the expenditure by Burns of some $36,000 on seeking to develop the trash burner in 1966, the year in which the company was formed.

The company filed a return electing to expense the research and development expenses pursuant to Section 174(a), and claimed a loss of $36,780.44, of which appellant Snow’s share was $9,195.11.

It is undisputed that Burns Investment Company was just beginning its operation in 1966 and did not sell or offer to sell any of its products during that year. Nor did it have a patent issued or pending on the trash burner, or any income from sale of licenses or any other source. Trott’s first patent application on the trash burner was filed in 1968 and a patent was issued in 1970. The Tax Court held on these facts that Burns Investment was not engaged in trade or business in 1966 and that the expenditures were not “paid in connection with” its trade or business.

The Tax Court also held that Snow was not employed in the trade or business of inventing or development of inventions because of his investment in Burns and similar investments in two other small companies similarly organized by Trott to develop two other devices.

Appellants, including amici curiae representing small business and inventors, protest the unfairness of this decision. Snow claims that he is engaged in trade or business in relation to his investments in these several companies organized to develop and exploit inventions. He also claims that his participation in Burns Investment Company by organizational management and asserted technical suggestions pertaining to the invention constituted his participating in a trade or business. In addition, he asserts (and here the amici curiae join) that any small business must start somewhere and that refusal to allow first-year development expenditures is inconsistent with the congressional purpose in adoption of Section 174, which purpose was stated in part in the Congressional Record as follows:

[T]o prevent tax discrimination between large businesses having continuous programs of research and small or beginning enterprises. 97 Cong.Rec. 4326A (1951) (Remarks of Rep. Camp). (Emphasis added.)

One other fact should be added. Snow had an income in 1966 at his principal occupation as an Executive Vice Presi-ent of Procter & Gamble in excess of $200,000. As a consequence, if Section 174 applied, his investment in Burns was made as a high bracket taxpayer. Thus, as is so frequently true, two laudable public purposes are in direct conflict: 1) the Congressional purpose of stimulating research and development, including research and development on the part of inventors and small businessmen, and 2) the desirability of strict interpretation of tax laws so as to prevent unintended tax shelters.

The Tax Court founded its decision of this case on the conclusion that neither basis of Snow’s claim for deductions constituted expenditures “paid in connection with a trade or business” as that phrase had been construed at the time of the Congressional enactment of Section 174.

We agree with the Tax Court that “the issue is whether they [the expenditures for research and experimentation] were paid or incurred by Snow ‘in connection with his trade or business’ ” or the trade or business of Burns Investment Company.

The best known definition of these critical terms is that of Mr. Justice Frankfurter in a concurring opinion in Deputy v. DuPont, 308 U.S. 488, 499, 60 S.Ct. 363, 369, 84 L.Ed. 416 (1940), where he said, “ ‘. . . carrying on any trade or business,’ ... involves holding one’s self out to others as engaged in the selling of goods or services.” This definition was quoted and adopted by the Fourth Circuit. Helvering v. Highland, 124 F.2d 556 (4th Cir. 1942). The Fifth Circuit employed similar language, but added that “extensive activity over a substantial period of time” was required. Stanton v. Commissioner of Internal Revenue, 399 F.2d 326, 329 (5th Cir. 1968).

It seems clear to us, as it did to the Tax Court, that Burns Investment Company in 1966 was not holding itself out to others as being engaged in the selling of goods and services. It was engaged, of course, in experimental work preparatory to going into business, but the expenditures were not made (as required by Section 174) “in connection with [its] trade or business,” since as of 1966 it had no product to offer.

In a somewhat different fact situation, Judge Sobeloff of the Fourth Circuit, construed the language “carrying on any trade or business” in the context of Section 162(a) dealing with ordinary and necessary business expenses:

The uniform 6 teaching of these sev-
6- Southeastern Express Co., 19 B.T.A. 490 (1930), the only authority contra, has not been followed or even mentioned in later Tax Court cases.
eral cases is that, even though a taxpayer has made a firm decision to enter into business and over a considerable period of time spent money in preparation for entering that business, he still has not “engaged in carrying on any trade or business” within the intendment of section 162(a) until such time as the business has begun to function as a going concern and performed those activities for which it was organized.7
7- Compare concurring opinion of Mr. Justice Frankfurter, Deputy v. DuPont, 308 U.S. 498, 499, 60 S.Ct. 363, 369, 84 L.Ed. 416 (1940), “* * carrying on any trade or business,’ * * * involves holding one’s self out to others as engaged in the selling of goods or services.” See also the following cases construing the terms “trade or business” as used in section 174(a)(1), Internal Revenue Code of 1954, 26 U.S.C.A. § 174(a)(1) (1955), dealing with research and experimental expenses: Koons v. Commissioner of Internal Revenue, 35 T.C. 1092 (1961), “‘trade or business’ presupposes an existing business with which the taxpayer is directly connected”; Mayrath v. Commissioner of Internal Revenue, 41 T.C. 582 (1964), “ ‘trade or business,’ is used in the practical sense of a going trade or business.”
Applying this rule, we are of the view that there was no basis in the evidence for a charge permitting the jury to find that the taxpayer wás in ■business during the period in question. We are of the opinion, therefore, that the District Court was in error in failing to hold as a matter of law that Richmond Television was not in business until 1956, when it obtained the license and began broadcasting. Until then there was no certainty that it would obtain a license, or that it would ever go on the air. Since all of the expenditures underlying the disputed deductions were made before the license was issued and broadcasting commenced, they are “pre-operating expenses,” not deductible under section 162(a).
Richmond Television Corp. v. United States, 345 F.2d 901, 907 (4th Cir. 1965).

Similarly, in our instant case we hold that the expenditures sought to be deducted by Burns Investment Company in 1966 were “pre-operating” expenses and not deductible under Section 174. We cannot hold that the comment previously quoted from Representative Camp concerning “beginning enterprises” demonstrates a Congressional intent to set aside the settled interpretation of the language “trade or business” as used in Section 174.

Appellants rely upon Cleveland v. Commissioner of Internal Revenue, 297 F.2d 169 (4th Cir. 1961). We are by no means certain that Cleveland involved any dispute over whether the joint enterprise therein concerned was engaged in a trade or business. If, however, it be read as in conflict with our view in this case, we prefer the logic of the later Fourth Circuit holding in Richmond Television Corp. v. United States, supra, to the Fourth Circuit’s earlier holding in Cleveland.

Snow also contends that he should be allowed to deduct these same expenditures (even if Burns is not held to be in business in 1966) because he was himself engaged in the business of developing inventions.

Concerning this contention of Snow’s, the Tax Court said:

Snow contends that because, in addition to Burns, he was also a participant in Trott’s other partnerships, Courier and Echo, which in 1966 had inventions ready for sale or licensing, he, and Trott as well, were in the trade or business of inventing, developing and marketing patentable products, and that although the Burns invention was not completed, it was a similar product, the research expenses of which should be deductible in accordance with the principle of Best Universal Lock Co., [45 T.C. 1] supra.
We note that there were no sales nor attempts to sell by Burns in 1966, 1967 nor 1968. There were no goods held for sale by Burns in the taxable year 1966. And if the other partnerships, Courier and Echo, and the inventions they developed may be considered in this connection there were no sales by either of them in 1966 nor 1967. While Snow said these inventions were ready for sale or licensing, there is no evidence that any effort was made to sell them. Snow testified that such a sale was Trott’s function. Trott did not mention any attempt to offer them for sale.
* * * * * *
In Stanton v. Commissioner, [of Internal Revenue] 399 F.2d 326 (C.A. 5, 1968), affirming a Memorandum Opinion of this Court, the taxpayer sought to deduct research and experimental expenditures incurred in the development of a “storm proof” boat. The Court of Appeals concluded that the taxpayer’s efforts as an inventor lacked that degree of continuity and regularity that is essential before an activity can be found to constitute a trade or business. The taxpayer’s efforts, spread over a number of years, were irregular and sporadic, and his revenue was negligible.3

3. Cf. Myron E. Cherry, 26 T.C.M. 557 (1967); Charles H. Schafer, 23 T.C.M. 927 (1964) ; William S. Scull, II, 23 T.C.M. 1353 (1964).

Although a taxpayer may be in the business of doing research and experimentation, or of being an inventor, it is necessary that this be related to the development or improvement of existing products or services, or to new products or services in connection with a going trade or business.

While it is true that a taxpayer may be engaging in more than one business, George A. Butler, 36 T.C.No. 1097 (Sept. 19,' 1961), Snow’s activities as shown by this record were clearly not such as to warrant his- claiming to be engaged in the business of inventing. A somewhat less unsubstantial claim might be an assertion that he was engaged in the business of development of inventions by investment. In this connection the record shows that he had made minority stockholder investments in three companies ($10,000 in Burns, $5,000 in Courier, and $15,000 in Echo). In 1966 none of these companies had a product for sale to the public, although Courier and Echo had each developed a device to the point where they were available for licensing.

If investing in development of inventions could properly be held to be carrying on a trade or business, we would agree with the Tax Court that Snow’s investment activities in relation to these three companies were not sufficiently continuous or regular enough when taken together to represent his engaging in carrying on a trade or business.

We believe, however, that the Supreme Court decision in Whipple v. Commissioner of Internal Revenue, 373 U.S. 193, 83 S.Ct. 1168, 10 L.Ed.2d 288 (1963), forecloses our consideration of Snow’s claim to be engaging in a trade or business as an investor in inventions. In Whipple the taxpayer was engaged full time (not sporadically in time off from a $200,000 executive post) in management of his investments in corporations in which he had a majority interest. He claimed a deduction for a bad debt on an unpaid loan he had made to one of the corporations which went bankrupt. The Supreme Court rejected the bad debt deduction under Section 23(k)(l) because it held taxpayer’s activities in investing and managing his investments did not constitute a trade or business.

The Court said:

Devoting one’s time and energies to the affairs of a corporation is not of itself, and without more, a trade or business of the person so engaged. Though such activities may produce income, profit or gain in the form of dividends or enhancement in the value of an investment, this return is distinctive to the process of investing and is generated by the successful operation of the corporation’s business as distinguished from the trade or business of the taxpayer himself. When the only return is that of an investor, the taxpayer has not satisfied his burden of demonstrating that he is engaged in a trade or business since investing is not a trade or business and the return to the taxpayer, though substantially the product of his services, legally arises not from his own trade or business but from that of the corporation. Even if the taxpayer demonstrates an independent trade or business of his own, care must be taken to distinguish' bad debt losses arising from his own business and those actually arising from activities peculiar to an investor concerned with, and participating in, the conduct of the corporate business.
If full-time service to one corporation does not alone amount to a trade or business, which it does not, it is difficult to understand how the same service to many corporations would suffice. To be sure, the presence of more than one corporation might lend support to a finding that the taxpayer was engaged in a regular course of promoting corporations for a fee or commission, see Ballantine, Corporations (rev. ed. 1946), 102, or for a profit on their sale, see Giblin v. Commissioner of Internal Revenue, 227 F.2d 692 (C.A.5th Cir.), but in such cases there is compensation other than the normal investor’s return, income received directly for his own services rather than indirectly through the corporate enterprise, and the principles of Burnet [Burnet v. Clark, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397], Dalton, [Dalton v. Bowers, 287 U.S. 404, 53 S.Ct. 205, 77 L.Ed. 389,] du Pont and Higgins [Higgins v. Commissioner of Int. Rev., 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783] are there fore not offended. On the other hand, since the Tax Court found, and the petitioner does not dispute, that there was no intention here of developing the corporations as going businesses for sale to customers in the ordinary course, the case before us inexorably rests upon the claim that one who actively engages in serving his own corporations for the purpose of creating future income through those enterprises is in a trade or business. That argument is untenable in light of Bur-net, Dalton, du Pont and Higgins, and we reject it. Absent substantial additional evidence, furnishing management and other services to corporations for a reward not different from that flowing to an investor in those corporations is not a trade or business under § 23(k)(4). We are, therefore, fully in agreement with this aspect of the decision below. Id. at 202-03, 83 S.Ct. at 1174. (Footnotes omitted.)

Under this holding we feel compelled to affirm the denial of the deductions sought by Snow as a result of his investment and managerial activities in the three companies concerned.

For the reasons set forth above, we affirm the judgment entered by the Tax Court. We have not sought to distinguish between those aspects of the Tax Court’s decision which we affirm because they are findings of fact which are not clearly erroneous, Commissioner v. Duberstein, 363 U.S. 278, 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), and those which we agree with as conclusions of law since we would affirm all relevant findings and conclusions on either basis.