Randall Ghibaudy appeals his incarceration for civil contempt and moves for release pending appeal pursuant to 28 U.S.C. Sec. 1826. Ghibaudy was found in contempt and incarcerated on August 23, 1984. He filed his notice of appeal on August 27, 1984, and his appeal was docketed August 30, 1984, but he did not file his brief or motion for release pending appeal until October 10, 1984. Oral argument on the appeal was heard November 9, 1984, and an order was issued that day summarily affirming the order of contempt and incarceration and denying the motion for release. In our order of November 9, 1984, we stated that an order or opinion explaining our reasoning would be forthcoming. The present opinion is intended to be such an explanation. This procedure is, we believe, in accord with 28 U.S.C. Sec. 1826(b), which requires that appeals of orders of confinement for civil contempt be decided within thirty days, and with our prior practice, see In re Bonk, 527 F.2d 120 (7th Cir.), stay denied, 423 U.S. 942, 96 S. Ct. 350, 46 L. Ed. 2d 274 (1975).1

On July 11, 1984, a subpoena was issued for Randall Ghibaudy for testimony on July 25, 1984, before the Grand Jury for the Central District of Illinois sitting in Springfield. The subpoena was served on Ghibaudy on July 16, 1984. On July 17, 1984, the United States Attorney sought and received an order from the district court granting immunity. The order was to become effective if subsequent to its date Ghibaudy refused to testify based on his privilege against self-incrimination. In response to the issuance of the subpoena, Ghibaudy's attorney contacted the United States Attorney's office by telephone with respect to Mr. Ghibaudy's appearance. The government advised Ghibaudy's attorney that an investigation had been proceeding since September, 1983, when Ghibaudy's attorney had met with the government concerning a previous grand jury subpoena, and indicated it was ready to seek immunity for Mr. Ghibaudy and to compel his testimony. Ghibaudy's attorney then indicated Ghibaudy would not testify. In following up this telephone conversation, the U.S. Attorney's office sent Ghibaudy's attorney a letter and copies of the motion to compel testimony and the Acting Assistant Attorney General's letter authorizing application for an order to compel testimony. Mr. Ghibaudy appeared with counsel on July 25, 1984, pursuant to the subpoena. However, due to the illness of the Assistant U.S. Attorney he did not testify. He agreed to return one month later at the next meeting of the grand jury, and was served with a subpoena commanding his appearance on August 22, 1984.

Mr. Ghibaudy appeared at the U.S. Attorney's office in Springfield on August 22nd, but was not accompanied by counsel. Counsel telephoned from Florida stating that he was en route to Illinois but did not know if he would arrive in time to assist Ghibaudy. Mr. Ghibaudy's appearance was continued until the following day. The Assistant U.S. Attorney who had been responsible for issuing the subpoena and investigating the case was not present, but another Assistant U.S. Attorney filled in. Shortly before Mr. Ghibaudy was called to testify on August 23rd, his counsel filed an Objection to Grant of Immunity, a Motion and Memorandum for Protective Order and Disclosure, and a Motion for Disclosure of Electronic Surveillance.

Mr. Ghibaudy refused to answer some of the questions put to him before the grand jury. He answered some questions, such as whether he had an attorney, whether he understood the substantive question and whether he had an answer. Ghibaudy took the questions down on a note pad, conferred with his attorney outside the grand jury chamber and, as the case might be, answered or refused to do so. After the refusals the United States Attorney filed a petition for a civil contempt order. The petition was considered by the district court later that day. After hearing arguments, the district judge recessed to consider the law as it was presented by counsel and the Assistant U.S. Attorney. At the conclusion of the hearing the district judge found Ghibaudy in contempt of court and remanded him to the custody of the United States Marshal without bond.

On August 27, 1984, Ghibaudy filed his notice of appeal. He then took until October 10, 1984, to file his brief and motion for release pending appeal. Oral argument was heard November 9, 1984, thirty days after Ghibaudy's brief was filed. We affirmed the contempt and incarceration order and denied the release motion that same day.

Ghibaudy's first argument is that it is a violation of due process and fundamental fairness for the government to compel testimony from a witness it admits it may indict. Ghibaudy claims that the sole purpose of calling him to testify was to induce contempt or perjury. In essence, Ghibaudy contends for transactional, not merely use and derivative use immunity. But use and derivative use immunity is all that is constitutionally required. Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The government acknowledges that neither Ghibaudy's grand jury testimony nor any information derived from it may be used in any prosecution of him. And, as the government further acknowledges, it has a very heavy burden of affirmatively proving that any evidence it proposes to use in some future criminal prosecution is derived from a legitimate source wholly independent of the compelled testimony or any information derived from it.

But this burden does not devolve upon the government until such time as it charges or prosecutes Ghibaudy. See Kastigar, 406 U.S. at 460, 461, 92 S. Ct. at 1664, 1665. Thus the government is under no obligation to set forth under seal all the evidence it possesses at the time it compels testimony by the witness who is a prospective defendant. Ghibaudy's motion seeking such is, at this time, premature.

Nor is Ghibaudy entitled to be supplied with reports of his prior statements to government investigators. Failure to supply them is not akin to inducing perjury. Such an argument has been rejected by the First Circuit:

A grand jury witness has no general right to transcripts of his [prior] testimony. In re Bottari, 453 F.2d 370 (1st Cir.1972). Appellants' [sic] ill-defined fear that a "slight inconsistency" between past and present testimony might subject him to perjury prosecution is unfounded. The immunity granted under 18 U.S.C. Secs. 6002 and 6003 precludes the use of immunized testimony in a prosecution for past perjury, United States v. Watkins, 505 F.2d 545, 546 (7th Cir.1974), and appellant is not entitled to any protection for future perjury, United States v. Chevoor, 526 F.2d 178, 181 (1st Cir.1975).

In re Bianchi, 542 F.2d 98, 100 (1st Cir.1976). The exception in the immunity statute allows the use of immunized testimony only in prosecutions for future perjury, future false statements and future failure to comply with the immunity order, not for past acts. United States v. Watkins, 505 F.2d 545, 546 (7th Cir.1974). Grand jury testimony cannot be used in a prosecution for perjury for prior statements, and prior inconsistent statements cannot form the sole basis for prosecution for perjury in grand jury testimony. In re Grand Jury Proceedings: Appeal of Greentree, 644 F.2d 348, 351 (5th Cir.1981).

Ghibaudy's second argument is that he had a right to receive evidence of any electronic surveillance of him or his attorney. Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972), and 18 U.S.C. Sec. 3504(a)(1) require that unlawful acts be affirmed or denied by the opponent of the party aggrieved. Illegal electronic surveillance is such an unlawful act. 18 U.S.C. Sec. 3504(b); Gelbard, 408 U.S. at 53, 92 S.Ct. at 2363. The occurrence of such an illegal act gives the objecting witness a defense to a contempt petition. Gelbard, 408 U.S. at 46-58, 92 S.Ct. at 2360-2366.

Here, Ghibaudy moved for disclosure of electronic surveillance. The motion was neither verified nor supported by affidavit. It merely alleged "[t]hat in conversations and questioning by federal agents of your Petitioner, questions were asked indicating knowledge of certain phone conversations," that he was "unaware of any way the government could have known of matters which were the subject of previous government questioning except through surveillance of his telephone conversations," and that therefore he believed "he and/or his premises, or those of his attorneys, have been subjected to unlawful electronic surveillance and that said surveillance had formed the basis of his being subpoenaed and the basis of the questions asked before the Grand Jury." Record on Appeal, Item 2. The government attorney then handling the case stated "on behalf of the Government that Mr. Ghibaudy was not the subject of any electronic surveillance now known to us, individually and based upon investigation." Transcript at 17. However, the government attorney was not the attorney "responsible for the issuance of the subpoena and the investigation of the case." Gov't Br. at 3. No affidavit was submitted, and the attorney's denial was not under oath. Although the government sent a transcript of the grand jury proceedings to the district court pursuant to a post-hearing motion to supplement the record, it did not include an affidavit denying electronic surveillance. These actions do not appear to be in quite the same spirit as the actions of the Solicitor General in Black v. United States, 385 U.S. 26, 87 S. Ct. 190, 17 L. Ed. 2d 26 (1966) (per curiam) (vacating conviction when, after certiorari denied, the Solicitor General voluntarily informed the Court that review disclosed that electronic surveillance of attorney-client conversations had taken place), and in O'Brien v. United States, 386 U.S. 345, 87 S. Ct. 1158, 18 L. Ed. 2d 94 (1967) (granting certiorari and vacating conviction where, in response to petition for certiorari, Solicitor General informed Court that electronic surveillance of attorney-client conversations had taken place).

Ghibaudy claims that the response here is insufficient to satisfy the requirements imposed on the government by United States v. Alter, 482 F.2d 1016 (9th Cir.1973). This contention must fail because Ghibaudy's allegation was unsupported and hence not the " 'concrete and specific showing' of probable electronic surveillance" necessary to trigger the Alter requirements. In re DeMonte, 667 F.2d 590, 595 (7th Cir.1981) (per curiam).

The government claims that because the Alter requirements do not apply, it need not satisfy the requirements of Korman v. United States, 486 F.2d 926 (7th Cir.1973). This contention, too, must fail. In re DeMonte does not hold that a charge of illegal electronic surveillance, neither made under oath nor substantiated by an affidavit may be "answered in kind," Gov't Br. at 7. Rather, In re DeMonte held that an affidavit sworn to by the prosecutor personally in charge of an investigation, though based only on the personal knowledge of the government attorney, would suffice as a government denial of electronic surveillance where the movant's claim lacked any evidentiary basis. 667 F.2d at 595.2 Thus In re DeMonte adopts the Korman affidavit requirement; it does not carve out an exception to that requirement.

Here the in-court attorney was the First Assistant U.S. Attorney, who would presumably be aware of any electronic surveillance. (This presumption might quickly dissipate if the government were to frequently, or even again, rely without explanation on the sort of minimal response it supplied here.) We do not doubt the government could have submitted an appropriate affidavit if it realized such was required. The government attorney made his oral denial after the recess in the hearing, and the government supplemented the hearing record a few days later. We fail to see why the government could not have used one of these breaks to prepare the necessary affidavit. In Korman we stayed the mandate after issuing our opinion in order to allow the government to submit the required affidavit. 486 F.2d at 931-32. We believe a similar procedure would be appropriate here. If the government has not supplied the required affidavit within fourteen days of the issuance of this opinion, we will consider a petition for rehearing filed within the following seven days. In future contempt proceedings where allegations of illegal electronic surveillance are made, the government will, of course, have to submit its Korman affidavit to the district court at the appropriate time.

Ghibaudy's final contention is that he was given neither adequate notice of the contempt hearing nor a meaningful opportunity to present his defense, all allegedly in violation of his due process rights. "The test is whether [the contemnor] had an adequate opportunity to raise his claims and have them determined by the court." In re Bonk, 527 F.2d 120, 127 (7th Cir.), stay denied, 423 U.S. 942, 96 S. Ct. 350, 46 L. Ed. 2d 274 (1975). Ghibaudy had such an opportunity. He knew in July 1984 that he was a witness subpoenaed before the federal grand jury and that an order had been entered compelling his testimony. On the 16th of that month his attorney indicated to the Assistant U.S. Attorney that Ghibaudy would not testify. Counsel was told, also in July, that the government would seek a contempt finding if Ghibaudy failed to testify. The refusal to testify, hearing and judgment of contempt did not take place until August 23, 1984, over a month later. He was then afforded an ample hearing and the opportunity to present arguments in support of the motions he had drafted and brought with him to the hearing. During the hearing Ghibaudy's attorney requested a continuance so that he could obtain a transcript of the grand jury hearing, claiming he was not sure that Ghibaudy had refused to answer. However, counsel had in his possession the note pad on which Ghibaudy had written down the questions asked by the government attorney and the answers developed in consultation with counsel. Further, at one point the district court tentatively offered Ghibaudy's attorney a continuance until Monday, August 27th. Ghibaudy's attorney then asked for additional time because he planned to go to Florida. The court recessed to consider Ghibaudy's arguments and supporting authority. Ghibaudy's attorney clearly arrived prepared to argue against a contempt motion, and did about as well as could be expected under the circumstances. We find that Ghibaudy had adequate notice and a meaningful opportunity to present his defense. There was no denial of due process. Accord In re Grand Jury Proceedings, Appeal of Whitehurst, 643 F.2d 226 (5th Cir.1981).

Ghibaudy had also filed a motion for release pending appeal, on the grounds that 28 U.S.C. Sec. 1826(b) requires appeals of civil contempt judgments to be decided within thirty days. When the motion was filed Ghibaudy had been incarcerated more than thirty days, and more than thirty days had elapsed since he had filed his notice of appeal. However, section 1826(b) also prohibits release on bail pending appeal "if it appears that the appeal is frivolous or taken for delay." 28 U.S.C. Sec. 1826(b). Ghibaudy's motion for release was filed simultaneously with his brief. We fail to see how we could have been expected to decide whether Ghibaudy's appeal was frivolous or taken for delay, much less decide his actual appeal, before he filed his brief. We did decide his appeal, and ruled on his motion for release, thirty days after he filed his brief. We believe that Ghibaudy's delay in filing his brief and motion estops him from including the period prior to his filings in the thirty day period of section 1826(b). In any event, his motion was for release pending appeal. Our order of November 9th decided his appeal and thus mooted the motion.

It was for these reasons that, in our Order of November 9, 1984, we affirmed the district court's order of contempt and incarceration and denied the motion for release pending appeal.

The government is ORDERED to submit an appropriate affidavit within fourteen days of the date of issue of this opinion. We will consider a petition for rehearing filed within the following seven days if no such affidavit is filed.