In re Quinn, 525 F.2d at 225; accord, e.g., In re Hodges, 524 F.2d 568, 569-70 (1st Cir. 1975). Here, those responding plainly have firsthand knowledge as they are the principals leading the investigation; in addition, they examined the files of their respective agencies and made further inquiries before preparing their affidavits.
Although 18 U.S.C. § 3504 speaks only of denying or affirming the allegedly illegal acts, courts have interpreted the statute to require the Government to make it reasonably clear that its denial is based on sufficient knowledge to be meaningful. See In re Alfred L. Hodges, Jr., 524 F.2d 568 (1st Cir., 1975). A balance must be struck between accepting worthless responses, on the one hand, and, on the other, creating standards so refined and technical as to invite protracted interruption of grand jury proceedings.
Although we do not now hold that a witness should be required to make a claim anticipatorily, or should be penalized for failing to do so, we do believe that the timeliness of the raising of the claim has some bearing on how rigorously we scrutinize the government's response. We first recognized the principle in In re Hodges, 524 F.2d 568 (1st Cir. 1975), that the government must be accorded some flexibility in meeting last minute claims and we reiterate that principle here. Although the delay in raising the electronic surveillance issue in this proceeding was arguably less egregious than in Hodges, we find that the last minute introduction of this claim excuses to some extent the sketchiness of the government's initial affidavits.
Though numerous decisions have held that a denial of wiretapping suffices to foreclose further inquiry concerning the basis for questions asked of grand jury witnesses, e.g., In re Hodges, 524 F.2d 568 (1st Cir. 1975); United States v. Stevens, 510 F.2d 1101 (5th Cir. 1975), we are not aware of any decision requiring that conclusive effect be given to a denial of wiretapping in the context of a criminal trial, nor do we believe that the rule in the grand jury context should be extended to criminal trials. These two proceedings differ significantly.
This court has recently reviewed the obligation of the government in response to a claim of privilege under 18 U.S.C. § 3504 by a grand jury witness. In re Quinn, 525 F.2d 222 (1st Cir. 1975); see also In re Hodges, 524 F.2d 568 (1st Cir. 1975). This case involves the application of the principles of Quinn to a different factual situation.
In Re Lochiatto, 497 F.2d 803, 808 (1st Cir.1974). Since the situation before us is one of denial of the existence of electronic surveillance, authorized or illegal, the question the Court must determine is whether the government's denial by means of affidavits complies with the sufficiency requirements outlined by our Circuit in In Re Quinn, 525 F.2d 222 (1st Cir.1975) and in In Re Hodges, 524 F.2d 568 (1st Cir.1975). See also: United States v. Doe (Marx), 451 F.2d 466 (1st Cir.1971) and In Re Pantojas, 628 F.2d 701 (1st Cir.1980).