Animal Activist Fights Investigators Tooth & Claw

San Francisco federal prosecutors are finding that bringing animal rights activists before a grand jury is like, well, herding cats.

Since 2003, law enforcement has been engaged in a cat-and-mouse game with Daniel San Diego, an on-the-lam activist accused of bombing two East Bay pharmaceutical companies, to little avail. Attempts to gain information on San Diego’s whereabouts through a federal criminal grand jury here have stalled repeatedly, as the pro-animal groups resist interrogation attempts and fight subpoenas.

On Thursday afternoon, a three-judge Ninth Circuit panel ruled that Northern District Judge Susan Illston was right to hold activist Michael Kennedy (referred to in the Ninth Circuit opinion as John Doe) in contempt for failing to testify in front of the grand jury. Kennedy’s lawyer, Rita Hao of Gonzalez & Leigh, argued that Kennedy should not have to answer questions because prosecutors targeted him as the result of an illegal wire tap.

And the Ninth Circuit panel of Judges Raymond Fisher and William Fletcher and Senior Judge Alfred Goodwin couldn’t totally disagree. Kennedy testified that he heard suspicious clicks on his phone, and received certain pieces of mail between him and his attorney that appeared to be opened. In one instance, a batch of such mail was mysteriously delivered “on a postal holiday when there was no regular mail delivery,? the opinion says.

And the judges, writing per curiam, also questioned an FBI agent’s tepid denial of illegal surveillance. “We have serious doubts regarding the adequacy of the FBI agent declaration in rebutting Doe’s claims,? they wrote, adding that the statement “falls short of an unequivocal denial.?

Alas, Kennedy won’t get out of testifying thanks to the agent, since, the judges wrote, the grand jury questions were general enough that they could have been based on evidence other than a wiretap or mail surveillance: Kennedy had earlier been detained by the FBI after agents found him in San Diego’s home.

Hao said Kennedy will likely have to choose between testimony and the slammer. “We’re working on the assumption that if he still refuses to testify, he’ll be remanded into custody fairly soon,? she said Thursday.

— Justin Scheck

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