Where a grand jury witness is adjudicated in civil contempt
under 28 U.S.C. § 1826(a) for refusing "without just cause shown to
comply with an order of the court to testify," the witness may
invoke as a defense 18 U.S.C. § 2515, which directs that
"[w]henever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any . . .
proceeding in or before any . . . grand jury . . . ,"
since a showing that the interrogation would be based upon the
illegal interception of the witness' communications would
constitute the "just cause" that precludes a finding of contempt.
Pp.
408 U. S.
46-61.
No. 71-110, 443 F.2d 837, reversed and remanded; No. 71-263, 450
F.2d 199 and 450 F.2d 231, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. DOUGLAS, J.,
post, p.
408 U. S. 62,
and WHITE, J.,
post, p.
408 U. S. 69,
filed concurring opinions. REHNQUIST, J., filed a dissenting
opinion, in which BURGER, C.J., and BLACKMUN and POWELL, JJ.,
joined,
post, p.
408 U. S.
71.
Page 408 U. S. 42
MR. JUSTICE BRENNAN delivered the opinion of the Court.
These cases present challenges to the validity of adjudications
of civil contempt, pursuant to 28 U.S.C. § 1826(a), [
Footnote 1] of witnesses before federal grand juries
Page 408 U. S. 43
who refused to comply with court orders to testify. The refusals
were defended upon the ground that interrogation was to be based
upon information obtained from the witnesses' communications,
allegedly intercepted by federal agents by means of illegal
wiretapping and electronic surveillance. A provision of Title III
of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat.
211, as amended, 18 U.S.C. §§ 2510-2520, directs that,
"[w]henever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any . . .
proceeding in or before any . . . grand jury . . . if the
disclosure of that information would be in violation of this
chapter."
18 U.S.C. § 2515. [
Footnote 2] The question
presented is whether grand jury witnesses, in proceedings under 28
U.S.C. § 1826(a), are entitled to invoke this prohibition of § 2515
as a defense to contempt charges brought against them for refusing
to testify. In No. 71-110, the Court of Appeals for the Ninth
Circuit held that they are not entitled to do so.
United States
v. Gelbard, 443 F.2d 837 (1971). In No. 71-263, the Court of
Appeals for the Third Circuit, en banc, reached the contrary
conclusion.
In re Grand Jury Proceedings, Harrisburg,
Pennsylvania (Egan), 450
Page 408 U. S. 44
F.2d 199 (1971);
In re Grand Jury Proceedings, Harrisburg,
Pennsylvania (Walsh), 450 F.2d 231 (1971). We granted
certiorari. 404 U.S. 990 (197). [
Footnote 3] We
disagree with the Court of Appeals for the Ninth Circuit and agree
with the Court of Appeals for the Third Circuit.
No. 71-110. A federal district Judge approved wiretaps by
federal agents of the telephones of Perry Paul, an alleged
bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas
casino. In the course of those taps, the agents overheard
conversations between Paul and petitioner Gelbard and between
Zarowitz and petitioner Parnas. Petitioners were subsequently
called before a federal grand jury convened in Los Angeles to
investigate possible violations of federal gambling laws. The
Government asserted that petitioners would be questioned about
third parties and that the questions would be based upon
petitioners' intercepted telephone conversations. Petitioners
appeared before the grand jury, but declined to answer any
questions based upon their intercepted conversations until they
were afforded an opportunity to challenge the legality of the
interceptions. Following a hearing, the United States District
Court for the Central District of California found petitioners in
contempt and, pursuant to 28
Page 408 U. S. 45
U.S.C. § 1826(a), committed them to custody for the life of the
grand jury or until they answered the questions.
No. 71-263. Respondents Egan and Walsh were called before a
federal grand jury convened in Harrisburg, Pennsylvania, to
investigate, among other possible crimes, an alleged plot to kidnap
a Government official. Pursuant to 18 U.S.C. § 2514, both
respondents were granted transactional immunity in return for their
testimony. Respondents appeared before the grand jury but refused
to answer questions on the ground, among others, that the questions
were based upon information overheard from respondents by means of
the Government's illegal wiretapping and electronic surveillance.
The Government did not reply to respondents' allegations. [
Footnote 4] Following a hearing, the United States
District Court for the Middle District of Pennsylvania found
respondents in contempt, and they were also committed to custody
pursuant to 28 U.S.C. § 1826(a).
Section 1826(a) expressly limits the adjudication of civil
contempt to the case of a grand jury witness who "refuses without
just cause shown to comply with an order of the court to testify."
Our inquiry, then, is whether a showing that interrogation would be
based upon the illegal interception of the witness' communications
constitutes a showing of "just cause" that precludes a finding of
contempt. The answer turns on the construction of Title III of the
Omnibus Crime Control Act. [
Footnote 5]
Page 408 U. S. 46
I
In Title III, Congress enacted a comprehensive scheme for the
regulation of wiretapping and electronic surveillance.
See
United States v. United States District Court, 407 U.
S. 297,
407 U. S.
301-306. Title III authorizes the interception of
private wire and oral communications, but only when law enforcement
officials are investigating specified serious crimes and receive
prior judicial approval, an approval that may not be given except
upon compliance with stringent conditions. 18 U.S.C. §§ 2516,
2518(1)-(8). If a wire or oral communication is intercepted in
accordance with the provisions of Title III, the contents of the
communication may be disclosed and used under certain
circumstances. 18 U.S.C. § 2517. Except as expressly authorized in
Title III, however, all interceptions of wire and oral
communications are flatly prohibited. Unauthorized interceptions
and the disclosure or use of information obtained through
unauthorized interceptions are crimes, 18 U.S.C. § 2511(1), and the
victim of such interception, disclosure, or use is entitled to
recover civil damages, 18 U.S.C. § 2520. Title III also bars the
use as evidence before official bodies of the contents and fruits
of illegal interceptions, 18 U.S.C. § 2515, and provides procedures
for moving to suppress such evidence in various proceedings, 18
U.S.C. § 2518(9)-(10).
The witnesses in these cases were held in contempt for
disobeying court orders by refusing to produce evidence their
testimony -- before grand juries. Consequently, their primary
contention is that § 2515, the evidentiary prohibition of Title
III, afforded them a defense to the contempt charges. In addressing
that contention, we must assume, in the present posture of
Page 408 U. S. 47
these cases, that the Government has intercepted communications
of the witnesses and that the testimony the Government seeks from
them would be, within the meaning of § 2515, "evidence derived"
from the intercepted communications. We must also assume that the
communications were not intercepted in accordance with the
specified procedures, and thus that the witnesses' potential
testimony would be "disclosure" in violation of Title III.
See 18 U.S.C. §§ 2511(1), 2517(3). In short, we proceed on
the premise that § 2515 prohibits the presentation to grand juries
of the compelled testimony of these witnesses.
The narrow question, then, is whether, under these
circumstances, the witnesses may invoke the prohibition of § 2515
as a defense to contempt charges brought on the basis of their
refusal to obey court orders to testify. We think they may.
The unequivocal language of § 2515 expresses the fundamental
policy adopted by Congress on the subject of wiretapping and
electronic surveillance. As the congressional findings for Title
III make plain, that policy is strictly to limit the employment of
those techniques of acquiring information:
"To safeguard the privacy of innocent persons, the interception
of wire or oral communications where none of the parties to the
communication has consented to the interception should be allowed
only when authorized by a court of competent jurisdiction, and
should remain under the control and supervision of the authorizing
court. Interception of wire and oral communications should further
be limited to certain major types of offenses and specific
categories of crime with assurances that the interception is
justified and that the information
Page 408 U. S. 48
obtained thereby will not be misused."
§ 801(d), 82 Stat. 211. [
Footnote 6]
The Senate committee report that accompanied Title III
underscores the congressional policy:
"Title III has as its dual purpose (1) protecting the privacy of
wire and oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the interception
of wire and oral communications may be authorized. To assure the
privacy of oral and wire communications, title III prohibits all
wiretapping and electronic surveillance by persons other than duly
authorized law enforcement officers engaged in the investigation or
prevention of specified types of serious crimes, and only after
authorization of a court order obtained after a showing and finding
of probable cause."
S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). Hence,
although Title III authorizes invasions of individual privacy under
certain circumstances, the protection of privacy was an overriding
congressional concern. [
Footnote 7] Indeed, the
congressional findings articulate
Page 408 U. S. 49
clearly the intent to utilize the evidentiary prohibition of §
2515 to enforce the limitations imposed by Title III upon
wiretapping and electronic surveillance:
"In order to protect effectively the privacy of wire and oral
communications, to protect the integrity of court and
administrative proceedings, and to prevent the obstruction of
interstate commerce, it is necessary for Congress to define on a
uniform basis the circumstances and conditions under which the
interception of wire and oral communications may be authorized, to
prohibit any unauthorized interception of such communications, and
the use of the contents thereof in evidence in courts and
administrative proceedings."
§ 801(b), 82 Stat. 211 (emphasis added). [
Footnote
8] And the Senate report, like the congressional findings,
specifically addressed itself to the enforcement, by means
Page 408 U. S. 50
of § 2515, of the limitations upon invasions of individual
privacy:
"Virtually all concede that the use of wiretapping or electronic
surveillance techniques by private unauthorized hands has little
justification where communications are intercepted without the
consent of one of the participants. No one quarrels with the
proposition that the unauthorized use of these techniques by law
enforcement agents should be prohibited. . . . Only by striking at
all aspects of the problem can privacy be adequately protected. The
prohibition, too, must be enforced with all appropriate sanctions.
Criminal penalties have their part to play. But other remedies must
be afforded the victim of an unlawful invasion of privacy.
Provision must be made for civil recourse for damages.
The
perpetrator must be denied the fruits of his unlawful actions in
civil and criminal proceedings. Each of these objectives is sought
by the proposed legislation."
S.Rep. No. 1097,
supra, at 69 (emphasis added).
Section 2515 is thus central to the legislative scheme. Its
importance as a protection for "the victim of an unlawful invasion
of privacy" could not be more clear. [
Footnote
9]
Page 408 U. S. 51
The purposes of § 2515 and Title III as a whole would be
subverted were the plain command of § 2515 ignored when the victim
of an illegal interception is called as a witness before a grand
jury and asked questions based upon that interception. Moreover, §
2515 serves not only to protect the privacy of communications,
[
Footnote 10] but also to ensure that the courts
do not become partners to illegal conduct: the evidentiary
prohibition was enacted also "to protect the integrity of court and
administrative proceedings." Consequently, to order a grand jury
witness, on pain of imprisonment, to disclose evidence that 2515
bars in unequivocal terms is both to thwart the congressional
objective of protecting individual privacy by excluding such
evidence and to entangle the courts in the illegal acts of
Government agents.
In sum, Congress simply cannot be understood to have sanctioned
orders to produce evidence excluded from grand jury proceedings by
§ 2515. Contrary to the Government's assertion that the invasion of
privacy is over
Page 408 U. S. 52
and done with, to compel the testimony of these witnesses
compounds the statutorily proscribed invasion of their privacy by
adding to the injury of the interception the insult of compelled
disclosure. And, of course, Title III makes illegal not only
unauthorized interceptions, but also the disclosure and use of
information obtained through such interceptions. 18 U.S.C. §
2511(1);
see 18 U.S.C. § 2520. Hence, if the prohibition
of § 2515 is not available as a defense to the contempt charge,
disclosure through compelled testimony makes the witness the
victim, once again, of a federal crime. Finally, recognition of §
2515 as a defense
"relieves judges of the anomalous duty of finding a person in
civil contempt for failing to cooperate with the prosecutor in a
course of conduct which, if pursued unchecked, could subject the
prosecutor himself to heavy civil and criminal penalties."
In re Grand Jury Proceedings, Harrisburg Pennsylvania
(Egan), 450 F.2d at 220 (Rosenn, J., concurring).
"And for a court, on petition of the executive department, to
sentence a witness who is herself the victim of the illegal
wiretapping to jail for refusal to participate in the exploitation
of that crime in violation of the explicit command of Section 2515
is to stand our whole system of criminal justice on its head."
In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239,
1252 (1971) (Wright, J., concurring).
II
Our conclusion that § 2515 is an available defense to the
contempt charge finds additional support in 18 U.S.C. § 3504,
enacted as part of the Organized Crime Control Act of 1970, 84
Stat. 935. Section 3504 is explicit confirmation that Congress
intended that grand jury witnesses, in reliance upon the
prohibition of § 2515, might refuse to answer questions based upon
the illegal interception of their communications.
Page 408 U. S. 53
Section 3504 provides:
"(a) In any . . . proceeding in or before any . . . grand Jury.
. . ."
"(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."
Under § 3504(a)(2), disclosure of information relating to the
claim of inadmissibility is not mandatory if the "unlawful act"
took place before June 19, 1968, the effective date of Title III.
Under § 3504(a)(3), there is a five-year limitation upon the
consideration of a claim of inadmissibility based upon "the
exploitation of an unlawful act" that took place before June 19,
1968. Section 3504(b), by reference to Title III, defines an
"unlawful act" as one involving illegal wiretapping or electronic
surveillance. [
Footnote 11]
Page 408 U. S. 54
Section 3504, then, establishes procedures to be followed "upon
a claim by a party aggrieved that evidence is inadmissible because"
of an illegal interception. And § 3504 tracks § 2515 in its
application to grand jury proceedings. Indeed,
"[t]he language used in defining the types of proceedings, types
of forums, and jurisdictions in which section 3504 is applicable
was taken from 18 U.S.C. § 2515."
S.Rep. No. 91-617, p. 154 (1969). [
Footnote
12] In the application of § 3504 to "any . . . proceeding in or
before any . . . grand jury," "a party aggrieved" can only be a
witness, for there is no other "party" to a grand jury proceeding.
Moreover, a "claim . . . that evidence is inadmissible" can only be
a claim that the witness' potential testimony is inadmissible.
Hence, § 3504, by contemplating "a claim by a party aggrieved that
evidence is inadmissible because" of an illegal interception,
necessarily recognizes that grand jury witnesses may rely upon the
prohibition of § 2515 in claiming that the evidence sought from
them is inadmissible in the grand jury proceedings. Upon such a
claim by a grand jury witness, the Government, as "the opponent of
the claim," is required under § 3504(a)(1) to
Page 408 U. S. 55
"affirm or deny the occurrence of the alleged" illegal
interception. Section 3504 thus confirms that Congress meant that
grand jury witnesses might defend contempt charges by invoking the
prohibition of § 2515 against the compelled disclosure of evidence
obtained in violation of Title III.
The Government urges, however, that the procedures prescribed in
§ 3504 are limited in application to claims of inadmissibility
based upon illegal interceptions that took place before June 19,
1968, and that § 3504 cannot, therefore, provide support for a
construction of § 2515. We disagree. While subsections (a)(2) and
(a)(3) apply only when the illegal interception took place before
June 19, 1968, it is clear both from the face of § 3504 [
Footnote 13] and from its legislative history that
subsection (a)(1), imposing the duty upon "the opponent of the
claim" to "affirm or deny the occurrence of the alleged" illegal
interception, is not similarly limited.
The omission of the June 19, 1968, date from subsection (a)(1)
was not inadvertent. Subsection (a)(1) was not in the original
Senate bill, although the bill did contain counterparts of present
subsections (a)(2) and (a)(3) without the Jun 19, 1968, or any
other date limitation. [
Footnote 14]
See Hearings before the Subcommittee on Criminal Laws and
Procedures of the Senate Committee on the Judiciary on S. 30
et
al., 91st Cong., 1st Sess., 102-105
Page 408 U. S. 56
(1969). Subsection (a)(1) was added at the suggestion of the
Department of Justice. At that time, the Department followed the
practice of searching Government files for information about
wiretaps and eavesdropping. The Department advised the Senate
Judiciary Committee that, while it had been
"conduct[ing] such examinations as a matter of policy even in
cases where no motion ha[d] been filed . . . , defendants should be
assured such an examination by a specific requirement of law,
rather than hav[ing] to rely upon the continued viability of a
current policy."
Id. at 553. The Senate report on § 3504 explained
that,
"since [subsection (a)(1)] requires a pending claim as a
predicate to disclosure, it sets aside the present wasteful
practice of the Department of Justice in searching files without a
motion from a defendant."
S.Rep. No. 91-617, p. 154 (1969).
The reason assigned in the Senate for enacting subsection (a)(1)
was thus as applicable to post- as it was to pre-June 19, 1968,
interceptions. The same was true of the House. There, subsection
(a)(1) was supported on the ground that it would be beneficial to
the victims of illegal interceptions. Senator McClellan, for
example, who testified before the House Subcommittee, indicated
that subsection (a)(1) "places upon the Government an affirmative
duty to answer a claim that evidence is inadmissible because of
unlawful investigative conduct."
"The first requirement [of § 3504], that the Government admit or
deny the occurrence of the alleged invasion of the defendant's
rights, actually places or codifies a burden upon the Government,
rather than the defendant."
Hearings before Subcommittee No. 5 of the House Committee on the
Judiciary on S. 30 et al., 91st Cong., 2d Sess., 84, 104 (1970).
Other witnesses thought the provision unnecessary. [
Footnote 15] Indeed, one organization submitted
Page 408 U. S. 57
a report that disapproved subsection (a)(1) on the ground that
the Government should admit illegalities without a prior claim.
Id. at 62 (Section of Criminal Law of the American Bar
Association). It is also significant that congressional questioning
of a representative of the Department of Justice at the hearings
was directed to the Department's views on the insertion of a date
limitation only in subsections (a)(2) and (a)(3).
Id. at
659;
see the Department's written response,
id.
at 675-676.
The June 19, 1968, date was inserted in subsections (a)(2) and
(a)(3) after the conclusion of the House hearings. It is apparent
from the House report that only subsections (a)(2) and (a)(3) of
the Senate version were to be limited by the June 19, 1968, date,
and that subsection (a)(1) was to be operative without regard to
when the alleged illegal interception may have taken place:
"Paragraph (1) provides that, upon a claim by an aggrieved party
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 must affirm or deny the
occurrence of the alleged unlawful act. Under this provision, upon
a charge by the defendant with standing to challenge the alleged
unlawful conduct, the Government would be required to affirm or
deny that an unlawful act
Page 408 U. S. 58
involving electronic surveillance had in fact, occurred. If such
an unlawful act had in fact, occurred, paragraph (2), below, will
govern disclosure of the contents of the electronic surveillance
records or transcripts to the defendant and his counsel, unless
paragraph (3) applies."
H.R.Rep. No. 91-1549, p. 51 (1970). This explanation
demonstrates that "the opponent of the claim" [
Footnote 16] has a duty to "affirm or deny" whenever "a
party aggrieved" "claim[s] . . . that evidence is inadmissible
because it is" derived from an illegal interception. The date June
19, 1968, becomes relevant only after it is determined that an
illegal interception took place and an issue thus arises as to
disclosure of information bearing on the claim. [
Footnote 17]
Page 408 U. S. 59
III
The Government argues, finally, that, while § 2515 could be
construed to allow a grand jury witness to invoke its prohibition
as a defense to a contempt charge, "[i]f this section were the only
relevant portion of [Title III]," Brief for the United States in
No. 71-263, p. 19, proceedings before grand juries are omitted from
another provision of Title III, § 2518(10)(a), that authorizes
"[a]ny aggrieved person," [
Footnote 18] in
specified types of proceedings, to "move to suppress the contents
of any intercepted wire or oral communication, or evidence derived
therefrom." [
Footnote 19] But it does not follow
from the asserted omission of grand jury proceedings from the
suppression provision that grand jury witnesses cannot invoke §
2515 as a defense in a contempt proceeding under 28 U.S.C. §
1826(a). [
Footnote 20] The congressional concern
with the applicability
Page 408 U. S. 60
of § 2518(10)(a) in grand jury proceedings, so far as it is
discernible from the Senate report, was apparently that defendants
and potential defendants might be able to utilize suppression
motions to impede the issuance of indictments:
"Normally, there is no limitation on the character of evidence
that may be presented to a grand jury, which is enforceable by an
individual. [
United States v. Blue, 384 U. S.
251 (1966).] There is no intent to change this general
rule."
S.Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). The "general
rule," as illustrated in
Blue, is that a defendant is not
entitled to have his indictment dismissed before trial simply
because the Government "acquire[d] incriminating evidence in
violation of the [law]," even if the "tainted evidence was
presented to the grand jury." 384 U.S. at
384 U. S. 255
and n. 3;
see Lawn v. United States, 355 U.
S. 339 (1958);
Costello v. United States,
350 U. S. 359
(1956). But that rule has nothing whatever to do with the situation
of a grand jury witness who has refused to testify and attempts to
defend a subsequent charge of contempt. Hence, we cannot agree that
the Senate report expressed the view that a grand jury witness
would be foreclosed from raising the § 2515 defense in a contempt
proceeding under § 1826(a).
Furthermore, grand jury witnesses do not normally discover
whether they may refuse to answer questions by filing motions to
suppress their potential testimony. The usual procedure is, upon
the Government's motion, to have a court order a grand jury witness
to testify upon penalty of contempt for noncompliance. Section
1826(a) embodies that traditional procedure. The asserted omission
of grand jury proceedings from § 2518(10)(a)
Page 408 U. S. 61
may well reflect congressional acceptance of that procedure as
adequate in these cases. Consequently, we cannot suppose that
Congress, by providing procedures for suppression motions, intended
to deprive grand jury witnesses of the § 2515 defense that would
otherwise be available to them. Although the Government points to
statements in the Senate report to the effect that § 2518(10)(a)
"limits" § 2515, we read those statements to mean that suppression
motions, as a method of enforcing the prohibition of § 2515, must
be made in accordance with the restrictions upon forums,
procedures, and grounds specified in § 2518(10)(a). [
Footnote 21]
The judgment of the Court of Appeals for the Ninth Circuit in
No. 71-110 is reversed, and the case is remanded for further
proceedings consistent with this opinion. [
Footnote
22] The judgment of the Court of Appeals for the Third Circuit
in No. 71-263 is affirmed. [
Footnote 23]
It is so ordered.
Page 408 U. S. 62
* Together with No. 71-263,
United States v. Egan et
al., on certiorari to the United States Court of Appeals for
the Third Circuit.
[
Footnote 1]
Section 1826(a) 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 or provide
other information, including any book, paper, document, record,
recording or other material, the court, upon such refusal, or when
such refusal is duly brought to its attention, may summarily order
his confinement at a suitable place until such time as the witness
is willing to give such testimony or provide such information. No
period of such confinement shall exceed the life of --"
"(1) the court proceeding, or"
"(2) the term of the grand jury, including extensions,"
"before which such refusal to comply with the court order
occurred, but in no event shall such confinement exceed eighteen
months."
This provision was enacted as part of the Organized Crime
Control Act of 1970. It was intended to codify the existing
practice of the federal courts. S.Rep. No. 91-617, pp. 33, 56-57,
148-149 (1969); H.R.Rep. No. 91-1549, pp. 33, 46 (1970);
see
Shillitani v. United States, 384 U. S. 364
(1966).
[
Footnote 2]
Section 2515 provides in full:
"Whenever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or a
political subdivision thereof if the disclosure of that information
would be in violation of this chapter."
[
Footnote 3]
The Third Circuit followed
Egan in
In re Grand Jury
Investigation (Maratea), 444 F.2d 499 (1971) (en banc). The
District of Columbia Circuit has aligned itself with the Third,
see In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239
(1971), while the Ninth has continued to follow
Gelbard, see
Bacon v. United States, 446 F.2d 667 (1971);
Olsen v.
United States, 446 F.2d 912 (1971);
In re Russo, 448
F.2d 369 (1971);
Reed v. United States, 448 F.2d 1276
(1971);
United States v. Reynolds, 449 F.2d 1347 (1971).
The First and Fifth Circuits have also adverted to the question.
United States v. Doe (In re Marx), 451 F.2d 466 (CA1
1971);
United States v. Doe (In re Popkin), 460 F.2d 328
(CA1 1972);
Dudley v. United States, 427 F.2d 1140 (CA5
1970).
See also United States ex rel. Rosado v. Flood, 394
F.2d 139 (CA2 1968);
Carter v. United States, 417 F.2d 384
(CA9 1969).
[
Footnote 4]
See n 23,
infra.
[
Footnote 5]
In view of our disposition of these cases, we do not reach any
of the constitutional issues tendered as to the right of a grand
jury witness to rely upon the Fourth Amendment as a basis for
refusing to answer questions. We also note that the
constitutionality of Title III is not challenged in these
cases.
[
Footnote 6]
Paragraph (d) recognizes the responsible part that the judiciary
must play in supervising the interception of wire or oral
communications in order that the privacy of innocent persons may be
protected:
". . . the interception or use of wire or oral communications
should only be on court order. Because of the importance of
privacy, such interceptions should further be limited to major
offenses, and care must be taken to insure that no misuse is made
of any information obtained."
S.Rep. No. 1097, 90th Cong., 2d Sess., 89 (1968).
[
Footnote 7]
In stating the problem addressed by Congress in Title III, the
Senate report noted that
"[b]oth proponents and opponents of wiretapping and electronic
surveillance agree that the present state of the law in this area
is extremely unsatisfactory, and that the Congress should act to
clarify the resulting confusion."
Id. at 67. The report agreed:
"It would be, in short, difficult to devise a body of law from
the point of view of privacy or justice more totally unsatisfactory
in its consequences."
Id. at 69. The report then stressed that Title III
would provide the protection for privacy lacking under the prior
law:
"The need for comprehensive, fair and effective reform setting
uniform standards is obvious.
New protections for privacy must
be enacted. Guidance and supervision must be given to State
and Federal law enforcement officers. This can only be accomplished
through national legislation. This the subcommittee proposes."
Ibid. (emphasis added).
[
Footnote 8]
"Paragraph (b) recognizes that, to protect the privacy of wire
and oral communications, to protect the integrity of court and
administrative proceeding[s], and to prevent the obstruction of
interstate commerce, it is necessary for Congress to define on a
uniform basis the circumstances and conditions under which the
interception of wire or oral communications may be authorized. It
also finds that all unauthorized interception of such
communications should be prohibited, as well as
the use of the
contents of unauthorized interceptions as evidence in courts and
administrative hearings."
Id. at 89 (emphasis added).
[
Footnote 9]
"Section 2515 of the new chapter imposes an evidentiary sanction
to compel compliance with the other prohibitions of the chapter. It
provides that intercepted wire or oral communications or evidence
derived therefrom may not be received in evidence in any proceeding
before any court, grand jury, department, officer, agency,
regulatory body, legislative committee, or other authority of the
United States, a State, or a political subdivision of a State,
where the disclosure of that information would be in violation of
this chapter. . . . [I]t is not limited to criminal proceedings.
Such a suppression rule is necessary and proper to protect privacy.
The provision thus forms an integral part of the system of
limitations designed to protect privacy. Along with the criminal
and civil remedies, it should serve to guarantee that the standards
of the new chapter will sharply curtail the unlawful interception
of wire and oral communications."
Id. at 96 (citations omitted).
[
Footnote 10]
Congressional concern with the protection of the privacy of
communications is evident also in the specification of what is to
be protected. "The proposed legislation is intended to protect the
privacy of the communication itself. . . ."
Id. at 90. As
defined in Title III,
"'contents,' when used with respect to any wire or oral
communication, includes any information concerning the identity of
the parties to such communication or the existence, substance,
purport, or meaning of that communication."
18 U.S.C. § 2510(8). The definition thus
"include[s] all aspects of the communication itself. No aspect,
including the identity of the parties, the substance of the
communication between them, or the fact of the communication
itself, is excluded. The privacy of the communication to be
protected is intended to be comprehensive."
S.Rep. No. 1097,
supra, at 91.
[
Footnote 11]
Section 3504 provides in full:
"(a) In any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory body, or
other authority 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;"
"(2) disclosure of information for a determination if evidence
is inadmissible because it is the primary product of an unlawful
act occurring prior to June 19, 1968, or because it was obtained by
the exploitation of an unlawful act occurring prior to June 19,
1968, shall not be required unless such information may be relevant
to a pending claim of such inadmissibility; and"
"(3) no claim shall be considered that evidence of an event is
inadmissible on the ground that such evidence was obtained by the
exploitation of an unlawful act occurring prior to June 19, 1968,
if such event occurred more than five years after such allegedly
unlawful act."
"(b) As used in this section 'unlawful act' means any act
[involving] the use of any electronic, mechanical, or other device
(as defined in section 2510(5) of this title) in violation of the
Constitution or laws of the United States or any regulation or
standard promulgated pursuant thereto."
No question as to the constitutionality of § 3504 is raised in
these cases.
[
Footnote 12]
"The only exception is that section 350[4] omits legislative
committees." S.Rep. No. 91-617, p. 154 (1969). In addition, the
House amended § 3504, as passed by the Senate, so that, unlike §
2515, it "applies only to trials and other proceedings conducted
under authority of the United States." H.R.Rep. No. 91-1549, p. 51
(1970).
[
Footnote 13]
The references to June 19, 1968, appear only in subsections
(a)(2) and (a)(3). Subsection (a)(1) does not similarly limit the
term "unlawful act" with the phrase "occurring prior to June 19,
1968."
See n 11,
supra. It is
thus plain on the face of § 3504 that Congress did not make the
duty imposed by subsection (a)(1) dependent upon the date of the
alleged illegal interception.
[
Footnote 14]
The Senate passed § 3504 in a form that, so far as is pertinent
to the issue before us, differed from the section as finally
enacted only in that subsections (a)(2) and (a)(3) in the Senate
version were not limited in application to illegal interceptions
that took place before June 19, 1968.
See S.Rep. No.
91-617, pp. 15, 70 (1969).
[
Footnote 15]
"[Subsection (a)(1)] provides that, in an attack upon the
admissibility of evidence because it is the product of an unlawful
act . . . , the opponent of such claim shall affirm or deny the
alleged unlawful act. . . . In this respect, [§ 3504] is
unnecessary."
Hearings before Subcommittee No. 5 of the House Judiciary
Committee on S. 30
et al., 91st Cong., 2d Sess., 399
(1970) (report of the Committee on Federal Legislation of the New
York County Lawyers' Association). "That is the law now by Supreme
Court decision. [Subsection (a)(1)] adds nothing to what exists
right now."
Id. at 513 (testimony of Lawrence Speiser,
representing the American Civil Liberties Union).
[
Footnote 16]
Congress, of course, was primarily concerned with
"certain evidentiary problems created by electronic surveillance
conducted by the Government prior to the enactment of [Title III]
on June 19, 1968, which provided statutory authority for obtaining
surveillance warrants in certain types of criminal investigations
(18 U.S.C. 2516)."
H.R.Rep. No. 91-1549, p. 50 (1970). As the Senate report noted,
however, § 3504 applies to "[c]ivil as well as criminal proceedings
. . regardless of whether a government or governmental body or
officer is or is not a party or witness." S.Rep. No. 91-617, p. 154
(1969). Moreover, "unlawful acts," as defined in § 3504(b), may be
"acts of private citizens, as well as acts of Federal or State
officials."
Ibid.
[
Footnote 17]
"Under paragraph (2), disclosure of the information shall be
required to be made to a defendant who has demonstrated the
illegality of the electronic surveillance (occurring prior to June
19, 1968) and his standing where such information is or 'may be'
relevant to a claim of inadmissibility. In cases where the
electronic surveillance occurred on or after June 19, 1968,
disclosure is mandatory where illegality and standing are
demonstrated. The provision thus alters the procedure announced in
Alderman v. United States, 394 U. S.
165 [(1969)] with respect to 'unlawful acts' committed
prior to June 19, 1968."
H.R.Rep. No. 91-1549, p. 51 (1970).
[
Footnote 18]
An "aggrieved person," for purposes of § 2518(10)(a), is
"a person who was a party to any intercepted wire or oral
communication or a person against whom the interception was
directed."
18 U.S.C. § 2510(11);
see S.Rep. No. 1097, 90th Cong.,
2d Sess., 91, 106 (1968).
[
Footnote 19]
Section 2518(10) provides in pertinent part:
"(a) Any aggrieved person in any trial, hearing, or proceeding
in or before any court, department, officer, agency, regulatory
body, or other authority of the United States, a State, or a
political subdivision thereof, may move to suppress the contents of
any intercepted wire or oral communication, or evidence derived
therefrom. . . ."
While, on its face, § 2518(10)(a) applies to grand jury
proceedings, when compared with the list of proceedings in § 2515,
see n 2,
supra, it appears that
"grand jury" was omitted from the list in § 2518(10)(a).
[
Footnote 20]
"Because no person is a party as such to a grand jury
proceeding, the provision does not envision the making of a motion
to suppress in the context of such a proceeding itself. . . . It is
the intent of the provision only that, when a motion to suppress is
granted in another context, its scope may include use in a future
grand jury proceeding."
S.Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). This
assertion is not ambiguous, for motions to suppress evidence to be
presented to a grand jury would presumably be made in court.
[
Footnote 21]
"This definition [§ 2510(11)] defines the class of those who are
entitled to invoke the suppression sanction of section 2515 . . .
through the motion to suppress provided for by section 2518(10)(a).
. . ."
Id. at 91.
"The provision [§ 2515] must, of course, be read in light of
section 2518(10)(a) . . . , which defines the class entitled to
make a motion to suppress."
Id. at 96.
"This provision [§ 2518(10)(a)] must be read in connection with
sections 2515 and 2517 . . . which it limits. It provides the
remedy for the right created by section 2515."
Id. at 106
[
Footnote 22]
Because the District Court and the Court of Appeals erroneously
held that grand jury witnesses have no right to invoke a § 2515
defense in contempt proceedings under § 1826(a), we need not decide
whether Gelbard and Parnas may refuse to answer questions if the
interceptions of their conversations were pursuant to court order.
That is a matter for the District Court to consider in the first
instance.
[
Footnote 23]
The Court of Appeals vacated the judgments of contempt and
remanded for hearings to determine whether the questions asked
respondents resulted from the illegal interception of their
communications. 450 F.2d at 217. Although, in this Court, the
Government now denies that there was any overhearing, in view of
our affirmance that is a matter for the District Court to consider
in the first instance.
MR. JUSTICE DOUGLAS, concurring.
Although I join in the opinion of the Court, I believe that,
independently of any statutory refuge which Congress may choose to
provide, the Fourth Amendment shields a grand jury witness from any
question (or any subpoena) which is based upon information garnered
from searches which invade his own constitutionally protected
privacy.
I would hold that Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 offends the Fourth Amendment, as does all
wiretapping and bugging, for reasons which I have often expressed
elsewhere.
E.g., Cox v. United States, 406 U.
S. 934;
Williamson v. United States,
405 U. S. 1026;
Katz v. United States, 389 U. S. 347,
389 U. S. 359;
Berger v. New York,
388 U. S. 41,
388 U. S. 64;
Osborn v. United States, 385 U. S. 323,
385 U. S. 340;
Pugach v. Dollinger, 365 U. S. 458,
365 U. S. 459;
On Lee v. United States, 343 U. S. 747,
343 U. S. 762.
In each of the present cases, a grand jury witness seeks to prove
and suppress suspected unconstitutional seizures of his own
telephone conversations. And, in every relevant respect, the
proceedings below were in striking parallel to those in
Silverthorne Lumber Co. v. United States, 251 U.
S. 385.
In that case, after federal agents unlawfully seized papers
belonging to the Silverthornes and to their lumber company, the
documents were returned upon order of the court. In the interim,
however, the agents had copied them. After returning the seized
originals, the prosecutor attempted to regain possession of them by
issuing a grand jury subpoena
duces tecum. When the
petitioners refused to comply with the subpoena, they
Page 408 U. S. 63
were convicted of contempt. In reversing those judgments, this
Court, through Mr. Justice Holmes, held that the Government was
barred from reaping any fruit from its forbidden act, and wove into
our constitutional fabric the celebrated maxim that
"[t]he essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court, but that it shall not be used
at all."
251 U.S. at
251 U. S.
392.
Petitioners Gelbard and Parnas and respondents Egan and Walsh
occupy positions which are virtually identical to that of the
Silverthornes and their company. They desire to demonstrate that,
but for unlawful surveillance of them, the grand jury would not now
be seeking testimony from them. And, as in
Silverthorne,
they are the victims of the alleged violations, seeking to mend no
one's privacy other than their own. Finally, here, as there, the
remedy preferred is permission to refuse to render the requested
information.
Unless
Silverthorne is to be overruled and uprooted
from those decisions which have followed it, such as
Nardone v.
United States, 308 U. S. 338,
308 U. S.
340-341;
Benanti v. United States, 355 U. S.
96,
355 U. S. 103;
Elkins v. United States, 364 U. S. 206,
364 U. S. 210;
Mapp v. Ohio, 367 U. S. 643,
367 U. S. 648;
Wong Sun v. United States, 371 U.
S. 471,
371 U. S.
484-485;
Harrison v. United States,
392 U. S. 219,
392 U. S. 222;
and
Alderman v. United States, 394 U.
S. 165,
394 U. S. 171,
394 U. S. 177,
these witnesses deserve opportunities to prove their allegations
and, if successful, to withhold from the Government any further
rewards of its "dirty business."
Olmstead v. United
States, 277 U. S. 438,
277 U. S. 470
(Holmes, J., dissenting).
The Solicitor General does not propose that
Silverthorne be overruled. Nor does he deny its remarkable
similarity. Indeed, his analysis of the constitutional issue at
stake here fails even to mention that landmark decision. [
Footnote 2/1]
Page 408 U. S. 64
And none of the precedents cited by him detract from
Silverthorne's vitality. [
Footnote
2/2]
Rather, the Government treats this decision as a "novel
Page 408 U. S. 65
extension" of Fourth Amendment protections, leaning heavily upon
the observation that the exclusionary rule has never been extended
to "provide that illegally seized evidence is inadmissible against
anyone for any purpose."
Alderman, supra, at
394 U. S. 175.
This aphorism is contravened, concludes the Solicitor General, by
any result permitting a nondefendant to "suppress" evidence sought
to be introduced at another's trial or to withhold testimony from a
grand jury investigation of someone else.
To be sure, no majority of this Court has ever held that
"anything which deters illegal searches is thereby commanded by the
Fourth Amendment."
Id. at
394 U. S. 174.
But that concern is not at stake here. No one is attempting to
assert vicariously the rights of others. Here it is only necessary
to adhere to the basic principle that victims of unconstitutional
practices are themselves entitled to effective remedies. For,
"where federally protected rights have been invaded, it has been
the rule from the beginning that courts will be alert to adjust
their remedies so as to grant the necessary relief."
Bell v. Hood, 327 U. S. 678,
327 U. S. 684.
And see Bivens v. Six Unknown Federal Narcotics Agents,
403 U. S. 388.
The fact that the movants below sought to withhold evidence does
not transform these cases into unusual ones. A witness is often
permitted to retain exclusive custody of information where a
contrary course would jeopardize important liberties such as First
Amendment guarantees,
Watkins v. United States,
354 U. S. 178;
NAACP v. Alabama, 357 U. S. 449,
357 U. S. 463;
Gibson v. Florida Legislative Investigation Committee,
372 U. S. 539;
Baird v. State Bar of Arizona, 401 U. S.
1,
401 U. S. 6-7;
In re Stolar,
401
Page 408 U. S. 66
U.S. 23; Fifth Amendment privileges,
Holman v. United
States, 341 U. S. 479, or
traditional testimonial privileges. [
Footnote
2/3]
The same is true of Fourth Amendment authority to withhold
evidence, even from a grand jury.
Hale v. Henkel,
201 U. S. 43;
Silverthorne, supra. No one would doubt, for example,
that, under
Bell v. Hood, supra, and
Bivens,
supra (or
Monroe v. Pape, 365 U.
S. 167, where state police were concerned), a telephone
subscriber could obtain an injunction against unlawful wiretapping
of his telephone despite the fact that such termination might
remove from the Government's reach evidence with which it could
convict third parties.
A contrary judgment today would cripple enforcement of the
Fourth Amendment. For, if these movants, who the Solicitor General
concedes are not the prosecutors' targets, were required to submit
to interrogation, then they (unlike prospective defendants) would
have no further opportunity to vindicate their injuries. More
generally, because surveillances are often
"directed primarily to the collecting and maintaining of
intelligence with respect to subversive forces, and are not an
attempt to gather evidence for specific criminal prosecutions,"
United States v. United States District Court,
407 U. S. 297,
407 U. S.
318-319, the normal exclusionary threat of
Weeks v.
United States, 232 U. S. 383,
would be sharply attenuated, and intelligence centers would be
loosed from virtually every deterrent against abuse. [
Footnote 2/4] Furthermore, even
Page 408 U. S. 67
where the "uninvited ear" is used to obtain criminal
convictions, rather than for domestic spying, a rule different from
our result today would supply police with an added incentive to
record the conversations of suspected coconspirators in order to
marshal evidence against alleged ringleaders. We are told that
"[p]olice are often tempted to make illegal searches during the
investigations of a large conspiracy. Once the police have
established that several individuals are involved, they may deem it
worthwhile to violate the constitutional rights of one member of
the conspiracy (particularly a minor member) in order to obtain
evidence for use against others."
White & Greenspan, Standing to Object to Search and Seizure,
118 U.Pa.L.Rev. 333, 351 (1970) (footnotes omitted). Because
defendants are normally denied "standing" to suppress evidence
procured as a result of invasions of others' privacy, today's
remedy is necessary to help neutralize the prosecutorial reward of
such tactics.
Today's remedy assumes an added and critical measure of
importance, for, due to the clandestine nature of electronic
eavesdropping, other inhibitions on officers' abuse, such as the
threat of damage actions, reform through the political process, and
adverse publicity, will be of little avail in guarding privacy.
Moreover, when a court assists the Government in extracting
fruits from the victims of its lawless searches, it degrades the
integrity of the judicial system. For
"[n]othing can destroy a government more quickly than its
failure to observe its own laws, or, worse, its disregard of the
charter of its own existence."
Mapp v. Ohio, 367 U. S. 643,
367 U. S. 659.
For this reason, our decisions have embraced
Page 408 U. S. 68
the view that
"[t]he tendency of those who execute the criminal laws of the
country to obtain conviction by means of unlawful seizures and
enforced confessions . . . should find no sanction in the judgments
of the courts, which are charged at all times with support of the
Constitution."
Weeks v. United States, 232 U.
S. 383,
232 U. S. 392.
As mentioned earlier, this principle was at the heart of the
Silverthorne decision. Later in his dissent in
Olmstead v. United States, 277 U.S. at
277 U. S. 470,
a case in which federal wiretappers had violated an Oregon law,
Mr.Justice Holmes, citing
Silverthorne, thought that both
the officers and the court were honor bound to observe the state
law:
"If the existing code does not permit district attorneys to have
a hand in such dirty business, it does not permit the judge to
allow such iniquities to succeed."
In the same case, Justice Brandeis, who was then alone in his
view that wiretapping was a search within the meaning of the Fourth
Amendment, phrased it this way:
"In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent, teacher. For good or for
ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto
himself; it invites anarchy."
Id. at
277 U. S.
485.
In an entrapment case, Mr. Justice Frankfurter, with whom
Justices Harlan, BRENNAN, and I joined, thought that "the federal
courts have an obligation to set their face against enforcement of
the law by lawless means" because
"[p]ublic confidence in the fair and honorable administration of
justice, upon which ultimately depends the rule of law; is the
transcending value at stake."
Sherman v. United States, 356 U.
S. 369,
356 U. S. 380
(concurring in result);
see also his opinion for the Court
in
Nardone v. United States, 308 U.
S. 338,
308 U. S.
340-341. In a Self-Incrimination
Page 408 U. S. 69
Clause decision, MR. JUSTICE BRENNAN (joined by MR. JUSTICE
MARSHALL and myself) used fewer words: "it is monstrous that courts
should aid or abet the lawbreaking police officer."
Harris v.
New York, 401 U. S. 222,
401 U. S. 232
(dissenting opinion).
These standards are at war with the Government's claim that
intelligence agencies may invoke the aid of the courts in order to
compound their neglect of constitutional values. To be sure, at
some point, taint may become so attenuated that ignoring the
original blunder will not breed contempt for law. But here, judges
are not asked merely to overlook infractions diminished by time and
independent events. Rather, if these witnesses' allegations are
correct, judges are being invited to become the handmaidens of
intentional [
Footnote 2/5] police lawlessness
by ordering these victims to elaborate on their telephonic
communications, of which the prosecutors would have no knowledge
but for their unconstitutional surveillance.
In summary, I believe that
Silverthorne was rightly
decided, that it was rooted in our continuing policy to equip
victims of unconstitutional searches with effective means of
redress, that it has enjoyed repeated praise in subsequent
decisions, that it has not been seriously challenged here, and that
it requires that we affirm the Third Circuit in
Egan and
Walsh and reverse the Ninth Circuit in
Gelbard
and
Parnas.
[
Footnote 2/1]
At oral argument, counsel for the United States contended that
Silverthorne Lumber Co. v. United States, 251 U.
S. 385, was distinguishable. First, it was said that, in
these cases, there has yet been no showing of illegal surveillance.
Tr. of Oral Arg. 26. The point is, however, that these witnesses
claim to be able to make such a showing, although none of the trial
courts below have permitted hearings on the issue. Second, it was
also argued that
Silverthorne was inapposite because
there, the very papers seized unlawfully were the ones later sought
under the court's subpoena.
Ibid. But there is little
doubt that Mr. Justice Holmes' reasoning would also have relieved
the Silverthornes from testifying before the grand jury as to the
contents of the purloined papers.
[
Footnote 2/2]
Three of the cases cited by the Solicitor General stand for
nothing more than the rule that a defendant may not challenge prior
to trial the evidence from which the indictment was drawn.
Costello v. United States, 350 U.
S. 359;
Lawn v. United States, 355 U.
S. 339;
United States v. Blue, 384 U.
S. 251. To be sure, the other authorities cited rejected
various privileges from testifying, but only for reasons which are
not in conflict with
Silverthorne Lumber Co. v. United States,
supra. For example, in
Murphy v. Waterfront Comm'n,
378 U. S. 52; and
Piemonte v. United States, 367 U.
S. 556, in light of our dispositions in those cases, no
threatened constitutional violation remained as a predicate for a
privilege. For, in
Murphy, we eliminated the threat that
testimony to a state grand jury given in exchange for a state
immunity grant could, despite the witness' fears to the contrary,
be used against him by other jurisdictions. And in
Piemonte, the Fifth Amendment basis for declining to
answer was dissolved by the majority's finding that there had been
a proper grant of immunity. True,
Goldstein v. United
States, 316 U. S. 114,
316 U. S. 121,
and
Alderman v. United States, 394 U.
S. 165, denied standing to defendants to suppress the
fruits of Fourth Amendment injuries to others, but that issue is
not presented here, inasmuch as all of these movants purported to
be victims of intercepted conversations. Finally,
Blair v.
United States, 250 U. S. 273,
held that a grand jury witness may not withhold evidence solely
because he believes that the statutes (which the grand jury
suspects may have been violated) are unconstitutional. That
contention, of course, has not been tendered by these grand jury
witnesses. Moreover,
Blair itself recognizes that, "for
special reasons a witness may be excused from telling all that he
knows."
Id. at
250 U. S. 281.
"Special reasons" presumably was meant to include Fourth Amendment
grounds, as was permitted shortly thereafter in
Silverthorne.
[
Footnote 2/3]
E.g., Alexander v. United States, 138 U.
S. 353 (lawyer-client);
Blau v. United States,
340 U. S. 332
(marital);
United States v. Reynolds, 345 U. S.
1 (military aircraft specifications).
[
Footnote 2/4]
Our remark in
United States v. United States District
Court, 407 U. S. 297,
407 U. S.
319-319, was our understanding only of the motivation
behind federal national security wiretapping. But the statistical
evidence shows that nonsecurity wiretapping also is seldom used to
convict criminals. In 1969, court-ordered federal wiretapping
seized 44,940 conversations, but only 26 convictions were obtained.
In 1970, federal court orders permitted the seizure of 147,780
communications, with 48 convictions. H. Schwartz, A Report on the
Costs and Benefits of Electronic Surveillance ii-v (1971).
[
Footnote 2/5]
As Mr. Justice Fortas said, wiretapping "is usually the product
of calculated, official decision, rather than the error of an
individual agent of the state."
Alderman v. United States,
394 U.S. at
394 U. S.
203.
MR. JUSTICE WHITE, concurring.
Under 28 U.S.C. 1826(a), a witness who refuses to testify
"without just cause" may be held in contempt of court. Here, grand
jury witnesses are involved, and the just cause claimed to excuse
them is that the testimony demanded involves the disclosure and use
of communications
Page 408 U. S. 70
allegedly intercepted in violation of the controlling federal
statute and hence inadmissible under 18 U.S.C. § 2515.
The United Stales asserts that § 2515 affords no excuse to grand
jury witnesses under any circumstances. Reliance is placed on §
2518(10)(a) and the legislative history of the statute. I agree
with the Court, however, that, at least where the United States has
intercepted communications without a warrant in circumstances where
court approval was required, it is appropriate in construing and
applying 28 U.S.C. § 1826 not to require the grand jury witness to
answer, and hence further the plain policy of the wiretap statute.
This unquestionably works a change in the law with respect to the
rights of grand jury witnesses, but it is a change rooted in a
complex statute, the meaning of which is not immediately obvious,
as the opinions filed today so tellingly demonstrate.
Where the Government produces a court order for the
interception, however, and the witness nevertheless demands a
full-blown suppression hearing to determine the legality of the
order, there may be room for striking a different accommodation
between the due functioning of the grand jury system and the
federal wiretap statute. Suppression hearings in these
circumstances would result in protracted interruption of grand jury
proceedings. At the same time, prosecutors and other officers who
have been granted and relied on a court order for the interception
would be subject to no liability under the statute, whether the
order is valid or not; and, in any event, the deterrent value of
excluding the evidence will be marginal, at best. It is well,
therefore, that the Court has left this issue open for
consideration by the District Court on remand.
See ante at
408 U. S. 61 n.
22.
Page 408 U. S. 71
Of course, where the Government officially denies the fact of
electronic surveillance of the witness, the matter is at an end,
and the witness must answer.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE POWELL join, dissenting.
Disposition of these cases depends on the sorting out of
admittedly conflicting implications from different sections of the
principal statute involved. The Court's conclusion, while
supportable if regard be had only for the actual language of the
sections, is by no means compelled by that language. Its conclusion
is reached in utter disregard of the relevant legislative history,
and quite without consideration of the sharp break that it
represents with the historical
modus operandi of the grand
jury. It is, in my opinion, wrong.
The Court states the question to be whether witnesses threatened
with contempt under 28 U.S.C. § 1826(a) "are entitled to invoke
this prohibition of § 2515 as a defense to contempt charges brought
against them for refusing to testify."
Ante at
408 U. S. 43.
The question, as thus framed by the Court, has been so abstracted
and refined, and divorced from the particulars of these two cases,
as to virtually invite the erroneous answer that the opinion of the
Court gives.
Nor is it accurate to "assume," as the Court does, that the
Government's overhearing of these witnesses was in violation of the
applicable statute. Petitioner Gelbard contended in the trial court
that the United States planned to use his electronically overheard
conversations as one basis for questioning him before the grand
jury, and so stated in a presentation to that court. The
Government, in a reply affidavit, stated that whatever information
had been gathered as a result of electronic overhearing had been
obtained from wiretaps conducted
Page 408 U. S. 72
pursuant to court order as provided in 18 U.S.C. § 2518.
[
Footnote 3/1] Parnas, so far as this record
shows, made no similar allegation in the trial court. The Court of
Appeals, in its opinion, described the position taken by these
witnesses in the following language:
"When cited for contempt in the district court, each attacked
the constitutional validity of Section 2518, and additionally urged
that he should not be required to testify until and unless first
allowed to inspect all applications, orders, tapes and transcripts
relating to such electronic surveillance and afforded an
opportunity to suppress the use before the grand jury of any
evidence so secured. . . ."
443 F.2d 837, 838.
Thus, what was presented to the trial court in this proceeding
under 18 U.S.C. § 1826(a) was not a neatly stipulated question of
law, but a demand by the petitioners that they be permitted to roam
at will among the prosecutor's records in order to see whether they
might be able to turn up any evidence indicating that the
Government's overhearing of their conversations had been
unauthorized by statute. In order to determine whether this
particular type of remedy is open to these petitioners at this
particular stage of potential criminal proceedings, it is not
enough to recite, as the Court does, that 18 U.S.C. § 2515
prohibits the use of illegally overheard wire communications before
grand juries, as well as before other governmental bodies. This
Page 408 U. S. 73
proposition is not disputed. The far more difficult inquiry
posed by these facts is whether the granting to these petitioners,
at this particular stage of these proceedings, of sweeping
discovery as a prelude to a full hearing on the issue of alleged
unlawful surveillance can fairly be inferred from the enactment by
Congress of the two statutes relied on in the Court's opinion.
I
It may be helpful at the outset to treat briefly the background
of 28 U.S.C. § 1826(a). As the Court notes, this provision was
enacted as a part of the Organized Crime Control Act of 1970, and
the Senate Report states that it was intended to codify the
"present practice" of the federal courts. S.Rep. No. 91-617, p. 148
(1969). The existing practice of the federal courts prior to the
enactment of this section was based on Fed.Rule Crim.Proc. 42 and
on 18 U.S.C. § 401, both of which dealt generally with the power of
courts to punish for contempt. The enactment of § 1826(a) appears
to have resulted from a desire on the part of Congress to treat
separately from the general contempt power of courts their
authority to deal with recalcitrant witnesses in court or grand
jury proceedings. Since, as the Senate Report states, the enactment
of this provision was designed to "codify present practice," it is
instructive to note the types of claims litigated in connection
with grand jury matters under Rule 42 and 18 U.S.C. § 401 prior to
the enactment of this new section. So far as the reported decisions
of this Court and of the lower federal courts reveal, prior
litigation with respect to grand juries has dealt almost
exclusively with questions of privilege, and most of these cases
have dealt with issues of the privilege against self-incrimination.
While it is plain that the respondent in such proceedings was
entitled to a hearing and to adduce evidence, it is equally plain
that the
Page 408 U. S. 74
typical hearing was short in duration and largely devoted to the
arguments of counsel on an agreed statement of facts. [
Footnote 3/2]
Some of the flavor of the type of proceeding contemplated under
the prior practice is gleaned from the following passage in the
Court's opinion in
Shillitani v. United States,
384 U. S. 364,
384 U. S. 370
(1966) (citations omitted):
"There can be no question that courts have inherent power to
enforce compliance with their lawful orders through civil contempt.
. . . And it is essential that courts be able to compel the
appearance and testimony of witnesses. . . . A grand jury subpoena
must command the same respect. . . . Where contempt consists of a
refusal to obey a court order to testify at any stage in judicial
proceedings, the witness may be confined until compliance . . .
."
These proceedings seem almost invariably to have been short and
summary in nature, not because the defendant was to be denied a
fair hearing, but because the type of issue that could be raised at
such a proceeding was one which did not generally permit extensive
factual development. Even where a court of appeals reversed a
contempt adjudication because of the district court's failure to
allow the defendant to testify on his own behalf with respect to
material issues, there was no hint of either the right to, or the
necessity for, any discovery proceedings against the Government.
Hooley v. United States, 209 F.2d 219 (CA1 1954).
Congress was, of course, free to expand the scope of inquiry in
these proceedings, to enlarge the issues to
Page 408 U. S. 75
be tried, and to alter past practice in any other way that it
chose consistently with the Constitution. But in view of the stated
congressional interest to "codify present practice" by the
enactment of § 1826(a), we should require rather strong evidence of
congressional purpose to conclude that Congress intended to engraft
on the traditional and rather summary contempt hearings a new type
of hearing in which a grand jury witness is accorded
carte
blanche discovery of all of the Government's "applications,
orders, tapes, and transcripts relating to such electronic
surveillance" before he may be required to testify. 443 F.2d at
838.
Just as Congress was not writing on a clean slate in the area of
contempt hearings, it was not writing on a clean slate with respect
to the nature of grand jury proceedings. These petitioners were
called before a grand jury that had been convened to investigate
violations of federal laws. We deal, therefore, not with the rights
of a criminal defendant in the traditional adversary context of a
trial, but with the status of witnesses summoned to testify before
a body devoted to sifting evidence that could result in the
presentment of criminal charges. Just as the cases arising under
the antecedents of 28 U.S.C. § 1826(a) suggest a limitation on the
type of issue which may be litigated in such a proceeding, cases
dealing with the role of the grand jury stress the unique breadth
of its scope of inquiry. In
Blair v. United States,
250 U. S. 273,
250 U. S. 282
(1919), this Court defined the vital investigatory function of the
grand jury:
"It is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable
result of
Page 408 U. S. 76
the investigation, or by doubts whether any particular
individual will be found properly subject to an accusation of
crime. As has been said before, the identity of the offender, and
the precise nature of the offense, if there be one, normally are
developed at the conclusion of the grand jury's labors, not at the
beginning. . . ."
Another passage from
Blair pointed out the citizen's
obligation to obey the process of the grand jury:
"[I]t is clearly recognized that the giving of testimony and the
attendance upon court or grand jury in order to testify are public
duties which every person within the jurisdiction of the Government
is bound to perform upon being properly summoned."
Id. at 281.
In
Costello v. United States, 350 U.
S. 359,
350 U. S. 362
(1956), the Court traced the development of the English grand jury
and concluded that the probable intent of the Framers of our
Constitution was to parallel that institution as it had existed in
England, where "[g]rand jurors were selected from the body of the
people, and their work was not hampered by rigid procedural or
evidential rules." 350 U.S. at
350 U. S. 362.
The Court in
Costello was at pains to point out the
necessity of limiting the nature of challenges to evidence adduced
before a grand jury if that body were to retain its traditional
comprehensive investigative authority:
"If indictments were to be held open to challenge on the ground
that there was inadequate or incompetent evidence before the grand
jury, the resulting delay would be great indeed. The result of such
a rule would be that, before trial on the merits, a defendant could
always insist on the kind of preliminary trial to determine the
competency and
Page 408 U. S. 77
adequacy of the evidence before the grand jury."
350 U.S. at
350 U. S.
363.
While this general statement applied, by its terms, only to one
who was ultimately indicted by the grand jury, its reasoning
applies with like force to one who seeks to make an evidentiary
challenge to grand jury proceedings on the basis of his status as a
prospective witness. Indeed, time-consuming challenges by witnesses
during the course of a grand jury investigation would be far more
inimical to the function of that body than would a motion to
dismiss an indictment after it had concluded its deliberations.
In
Lawn v. United States, 355 U.
S. 339 (1958), the Court refused to accord to
petitioners the hearing, prior to trial, on the issue of whether or
not a grand jury which indicted them had made direct or derivative
use of materials the use of which, by an earlier grand jury, had
been held to violate the petitioners' privilege against
self-incrimination. In supporting its conclusion that the
petitioners should not even be accorded a hearing to sustain these
contentions, the Court quoted a passage from
Costello
describing the grand jury as
"'[an] institution in which laymen conduct their inquiries
unfettered by technical rules. Neither justice nor the concept of a
fair trial requires such a change. In a trial on the merits,
defendants are entitled to a strict observance of all the rules
designed to bring about a fair verdict. Defendants are not
entitled, however, to a rule which would result in interminable
delay but add nothing to the assurance of a fair trial.'"
355 U.S. at
355 U. S.
350.
It seems to me to be clear beyond cavil from these cases that,
prior to the enactment of the Omnibus Crime Control and Safe
Streets Act of 1968, a hearing such as
Page 408 U. S. 78
that which the Court awards these petitioners was not only
unauthorized by law, but completely contrary to the ingrained
principles which have long governed the functioning of the grand
jury.
III
When Congress set out to enact the two statutes on which the
Court relies, it was certainly not with any announced intent to
change the nature of contempt hearings relating to grand jury
proceedings, or to change the
modus operandi of the grand
jury. Instead, largely in response to the decisions of this Court
in
Berger v. New York, 388 U. S. 41
(1967), and
Katz v. United States, 389 U.
S. 347 (1967), Congress undertook to draft comprehensive
legislation both authorizing the use of evidence obtained by
electronic surveillance on specified conditions and prohibiting its
use otherwise. S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968).
The ultimate result was the 1968 Act. Critical to analysis of the
issue involved here are §§ 2515 and 2518(10)(a) of that Act, which
provide in pertinent part as follows:
"Whenever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative
committee, or other authority . . . if the disclosure of that
information would be in violation of this chapter."
§ 2515.
"Any aggrieved person in any trial, hearing, or proceeding in or
before any court, department, officer, agency, regulatory body, or
other authority of the United States, a State, or a political
subdivision thereof, may move to suppress the contents of any
Page 408 U. S. 79
intercepted wire or oral communication, or evidence derived
therefrom, on the grounds that --"
"(i) the communication was unlawfully intercepted;"
"(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face; or"
"(iii) the interception was not made in conformity with the
order of authorization or approval. . . ."
§ 2518 (10)(a).
Here is presented, at the very least, an implied conflict
between two separate sections of the same Act. Section 2515
proscribes generally the use of unlawfully intercepted
communications as evidence before a number of specified bodies,
including a grand jury. Section 2518(10)(a) provides for the type
of hearing that petitioners sought and were denied by the District
Court; it provides such hearings in connection with a number of
specified legal proceedings, but it conspicuously omits proceedings
before a grand jury. The method by which the Court solves this
dilemma is to state that, if petitioners succeed after their
discovery in establishing their claim of unlawful electronic
surveillance, their questioning before the grand jury on the basis
of such electronic surveillance would violate § 2515, as, of
course, it presumptively would. Therefore, says the Court,
petitioners
must be entitled to the discovery and factual
hearing which they seek, even though § 2518(10)(a) rather clearly
denies it to them by implication.
A construction which I believe at least equally plausible, based
simply on the juxtaposition of the various sections of the statute,
is that § 2515 contains a basic proscription of certain conduct,
but does not attempt to specify remedies or rights arising from a
breach of that proscription; the specification of remedies is
left
Page 408 U. S. 80
to other sections. Other sections provide several remedies;
criminal and civil sanctions are imposed by §§ 2511 and 2520,
whereas § 2518(10)(a) accords a right to a suppression hearing in
specified cases. Thus, the fact that one who may be the victim of
alleged unlawful surveillance on the part of the Government is not
accorded an
Alderman-type suppression hearing
(
Alderman v. United States, 394 U.
S. 165 (1969)) under the provisions of § 2518(10)(a) is
not left remediless to such a degree that it must be presumed to
have been an oversight; he is remitted to the institution of civil
proceedings, or the filing of a complaint leading to the
institution of a criminal prosecution. While the latter two
remedies may not be as efficacious in many situations as a
suppression hearing, the remission of an aggrieved party to those
remedies certainly does not render nugatory the general
proscription contained in § 2515.
The omission of "grand jury" from the designated forums in §
2518(10)(a) is not explainable on the basis that, though the
testimony is sought to be adduced before a grand jury, the motion
to suppress would actually be made in a court, which is one of the
forums designated in § 2518(10)(a). The language "in any trial,
hearing, or proceeding in or before" quite clearly refers to the
forum in which the testimony is sought to be adduced. But even more
significant is the inclusion among the designated forums of
"department," "officer," "agency," and "regulatory body." Congress
has almost without exception provided that issues as to the
legality and propriety of subpoenas issued by either agencies or
executive departments should be resolved by the courts. It has
accomplished this result by requiring the agency to bring an
independent judicial action to enforce obedience to its subpoena.
See, e.g., 15 U.S.C. § 79r, Public Utility Holding Company
Act of 1935; 15 U.S.C. § 78u, Securities Exchange Act of 1934; 41
U.S.C. §§ 35-45, Walsh-Healey
Page 408 U. S. 81
Act; 50 U.S.C.App. § 2155, Defense Production Act of 1950; 47
U.S.C. §§ 409(f) and (g), Communications Act of 1934; 46 U.S.C. §
1124, Merchant Marine Act, 1936; 26 U.S.C. § 7604, Internal Revenue
Code of 1954; 16 U.S.C. § 825f(c), Electric Utility Companies Act;
15 U.S.C. § 717m(d), Natural Gas Act; 7 U.S.C. § 51m, Tobacco
Inspection Act. This general mode of enforcement of agency
investigative subpoenas was discussed in the context of the Fair
Labor Standards Act in
Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186
(1946).
Thus, if Congress in § 2518 had intended to focus on the forum
in which the hearing as to the legality of the subpoena is to be
determined, rather than the forum in which the testimony is sought
to be adduced, it would have omitted not only grand juries, but
departments, officers, agencies, and regulatory bodies as well from
the coverage of § 2518(10)(a). For questions as to the legality of
subpoenas issued by all these bodies are resolved in the courts. By
omitting only grand juries in § 2518, Congress indicated that it
was dealing with the forum in which the testimony was sought to be
adduced, and that the suppression hearing authorized by the section
was not to be available to grand jury witnesses.
In the light of these conflicting implications from the
statutory language itself, resort to the legislative history is
appropriate. Passages from the legislative history cited by the
Court in its opinion do not focus at all on the availability of a
suppression hearing in grand jury proceedings; they simply speak in
general terms of the congressional intent to prohibit and penalize
unlawful electronic surveillance, of which intent there can, of
course, be no doubt. But several parts of the legislative history
address themselves, far more particularly than any relied upon by
the Court in its opinion, to the actual issue before us. The Senate
Report, for example,
Page 408 U. S. 82
indicates as plainly as possible that the exclusion of grand
juries from the language of § 2518(10)(a) was deliberate:
"This provision [§ 2518(10)(a)] must be read in connection with
sections 2515 and 2517, discussed above,
which it limits.
It provides the remedy for the right created by section 2515.
Because no person is a party as such to a grand jury proceeding,
the provision does not envision the making of a motion to suppress
in the context of such a proceeding itself. Normally, there is no
limitation on the character of evidence that may be presented to a
grand jury, which is enforceable by an individual. [
United
States v. Blue, 384 U. S. 251 (1966).] There is
no intent to change this general rule. It is the intent of the
provision only that, when a motion to suppress is granted in
another context, its scope may include use in a future grand jury
proceeding."
S.Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). (Emphasis
added.)
There is an intimation in the opinion of the Court that the
reason this language was used may have been that grand juries do
not pass upon motions to suppress, while courts do. This intimation
is not only inconsistent with the language of the section itself,
as pointed out
supra at
408 U. S. 80,
but it attributes to the drafters of the report a lower level of
understanding of the subject matter with which they were dealing
than I believe is justified. It is also rather squarely
contradicted by the statement that there is no limitation on the
character of evidence that may be presented to a grand jury "which
is enforceable by an individual." Had the report meant to stress
the presumably well known fact that grand juries do not themselves
grant motions to suppress, it would not have
Page 408 U. S. 83
used that language, nor would it have cited
United States v.
Blue, 384 U. S. 251
(1966).
The fact that the report states the reason for the policy
adopted in terms of the rights of an "individual," rather than in
terms of the rights of a "defendant," makes the Court's discussion
of the doctrine of various cases,
ante at
408 U. S. 60, of
doubtful help in construing the statute. Whatever
United States
v. Blue, supra, may be said to "hold" after careful analysis
by this Court, the drafters of the Senate Report undoubtedly took
it to stand for the proposition for which they cited it. As stated
by Mr. Justice Frankfurter, concurring in
Green v. United
States, 356 U. S. 165,
356 U. S.
189:
"The fact that scholarship has shown that historical assumptions
regarding the procedure for punishment of contempt of court were
ill-founded hardly wipes out a century and a half of the
legislative and judicial history of federal law based on such
assumptions."
Not only does the report dealing with § 2518(10)(a) make clear
that it is to be construed in connection with § 2515, which it
limits, but the section of the same report dealing with § 2515
reemphasizes this conclusion. Speaking of the latter section, the
report says:
"The provision must, of course, be read in light of section
2518(10)(a), discussed below, which defines the class entitled to
make a motion to suppress. It largely reflects existing law. . . .
Nor generally [is there any intention] to press the scope of the
suppression rule beyond present search and seizure law.
See
Walder v. United States, 347 U. S. 62 (1954). . . . The
provision thus forms an integral part of the system of limitations
designed to protect privacy. Along with the criminal and
Page 408 U. S. 84
civil remedies, it should serve to guarantee that the standards
of the new chapter will sharply curtail the unlawful interception
of wire and oral communications."
S.Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968).
The conclusion that § 2518(10)(a) is the exclusive source of the
right to move to suppress is further fortified by the Senate
Report's comment on § 2510(11) of the Act, which defines an
"aggrieved person" as one who is a party to an "intercepted wire or
oral communication or a person against whom the interception was
directed." The Senate Report p. 91, states:
"This definition defines the class of those who are entitled to
invoke the suppression sanction of section 2515, discussed below,
through the motion to suppress provided for by section
218(10)(a), also discussed below. It is intended to reflect
existing law. . . ."
(Citations omitted.) (Emphasis added.)
Finally, § 2518(9) requires the Government to provide to each
party to "any trial, hearing or other proceeding" a copy of the
court order authorizing surveillance if the Government intends to
use the fruits thereof. The Senate Report p. 105, states:
"'Proceeding' is intended to include all adversary type
hearings. . . . It would not include a grand jury hearing.
Compare [United States v. Blue, supra]."
If § 2515 of the Omnibus Crime Control and Safe Streets Act of
1968 stood alone, without any informative legislative history, the
Court's conclusion with respect to the rights of these petitioners
would be plainly correct. If the conflicting implications from two
sections of the same statute were present in a regulatory scheme
which was to stand by itself, rather than to be superimposed on
procedures such as contempt hearings and
Page 408 U. S. 85
institutions such as the grand jury, the Court's conclusion
would at least be tenable. But when the Court concludes that
Congress, almost in a fit of absentmindedness, has drastically
enlarged the right of potential grand jury witnesses to avoid
testifying, and when such a conclusion is based upon one of two
ambiguous implications from the language of the statute, and is
contrary to virtually every whit of legislative history addressed
to the point in issue, I think its conclusion is plainly wrong.
IV
The Court seeks to bolster its reasoning by reliance upon 18
U.S.C. § 3504(a)(1), which was a part of the Organized Crime
Control Act of 1970. That section provides in pertinent part as
follows:
"(a) In any . . . proceeding . . . before any . . . grand Jury .
. ."
"(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."
Assuming,
arguendo, that this section does apply to
petitioners in No. 71-110, the record in the District Court and the
opinion of the Court of Appeals clearly show that only Gelbard made
what might be called a "claim" within the language of the section,
and that the Government, in its response, did "affirm or deny" the
occurrence of the alleged unlawful act; in fact, the Government
denied the occurrence of the unlawful act. This should be
sufficient for disposition of the case as to these petitioners.
The Court, without giving much guidance to those who would seek
to follow the path by which it reaches the conclusion, concludes
that this section
"confirms that
Page 408 U. S. 86
Congress meant that grand jury witnesses might defend contempt
charges by invoking the prohibition of § 2515 against the compelled
disclosure of evidence obtained in violation of Title III."
If the Court means to say any more than that, under the
circumstances specified in § 3504, the Government must affirm or
deny, I am at a loss how it extracts additional requirements from
the language used by Congress in that section.
But even if the Court were correct in deciding that § 3504(a)(1)
requires more than it says of the Government, I believe the Court
errs in deciding that this section applies at all to these
petitioners. Title VII, as enacted, actually consists of two parts,
A and B. Part A is a series of findings by Congress, reading as
follows:
"The Congress finds that claims that evidence offered in
proceedings was obtained by the exploitation of unlawful acts, and
is therefore inadmissible in evidence, (1) often cannot reliably be
determined when such claims concern evidence of events occurring
years after the allegedly unlawful act, and (2) when the allegedly
unlawful act has occurred more than five years prior to the event
in question, there is virtually no likelihood that the evidence
offered to prove the event has been obtained by the exploitation of
that allegedly unlawful act."
§ 701, 84 Stat. 935.
The House Report (to accompany S. 30) contains this comment on
Part A:
"This section contains a special finding relating,
as do the
following sections of the title, to certain evidentiary
problems created by electronic surveillance conducted by the
Government
prior to the enactment of Public Law 91 on June 19,
1968, which provided statutory authority for obtaining
surveillance warrants in certain types of criminal
Page 408 U. S. 87
investigations."
H.R.Rep. No. 91-1549, p. 50 (1970). (Emphasis supplied.) The
same report, in its introductory discussion of Title VII, contains
the following statement:
"Title VII intends to limit disclosure of information illegally
obtained by the Government to defendants who seek to challenge the
admissibility of evidence because it is either the primary or
indirect production [
sic] of such an illegal act. The
title also prohibits any challenge to the admissibility of evidence
based on its being the fruit of an unlawful governmental act, if
such act occurred 5 years or more before the event sought to be
proved. As amended by the committee, the application of title VII
is limited to Federal judicial and administrative proceedings,
and to electronic or mechanical surveillance which occurred
prior to June 19, 1968, the date of enactment of the Federal
wiretapping and electronic surveillance law (chapter 119, title 18,
United States Code)."
Id. at 34. (Emphasis supplied.)
The Senate Report, too, casts § 3504(a)(1) in quite a different
light from that in which the Court puts it:
"Lastly, it should be noted that nothing in section 3504(a)(1)
is intended to codify or change present law defining illegal
conduct or prescribing requirements for standing to object to such
conduct or to use of evidence given under an immunity grant.
See, e.g., Giordano v. United States, 394 U. S.
310 (1969);
Alderman v. United States,
394 U. S.
165 (1969).
Nevertheless, since it requires a
pending claim as a predicate to disclosure, it sets aside the
present wasteful practice of the Department of Justice in searching
files without a motion from a defendant. . . . "
Page 408 U. S. 88
S.Rep. No. 91-617, p. 154 (1969). (Emphasis supplied.)
These conclusions in the Senate Report are supported by
statements of the bill's managers in the House during the time it
was being debated. Congressman Poff explained Title VII as
follows:
"Title VII of S. 30 . . . would, first, reverse the Supreme
Court's decision in
Alderman v. United States,
394 U. S.
165 (1969) requiring, under its supervisory power, the
disclosure of Government files in criminal trials, and . . . would,
second, set a 5-year statute of limitations on inserting issues
dealing with the 'fruit of the poisonous tree' in similar
cases."
116 Cong.Rec. 35192.
Congressman Celler explained the amendments incorporating the
pre-June 19, 1968, time limitation into subsections (a)(2) and
(a)(3) of § 3504 that had been made by a subcommittee of the House
Judiciary Committee in these words:
"As amended by the committee, the application of title VII is
limited to Federal judicial and administrative proceedings, and to
electronic or mechanical surveillance which occurred prior to June
19, 1968, the date of enactment of the Federal wiretapping and
electronic surveillance law -- chapter 119, title XVIII, United
States Code."
Id. at 35196.
Even more specific was the explanation of the amendment made by
Congressman Poff on the floor of the House after the time
provisions had been included:
"TITLE VII -- LITIGATION CONCERNING SOURCES OF EVIDENCE"
"Mr. Chairman, title VII of the Organized Crime Control Act is
designed to regulate motions to suppress evidence in certain
limited situations where
Page 408 U. S. 89
the motion is based upon unlawful electronic eavesdropping or
wiretapping
which occurred prior to the enactment of the
Federal electronic surveillance laws on June 19, 1968. . .
."
"Where there was, in fact, an unlawful overhearing prior to June
19, 1968, the title provides for an
in camera examination
of the Government's transcripts and records to determine whether
they may be relevant to the claim of inadmissibility. . . . To the
extent that the court is permitted to determine relevancy in an
ex parte proceeding, the title will modify the procedure
established by the Supreme Court in
Alderman v. United
States [citation omitted]. . . ."
"
As I lave indicated, the title applies only to disclosures
where the electronic surveillance occurred prior to June 19,
1968. It is not necessary that it apply to disclosure
where an electronic surveillance occurred after that date,
because
such disclosure will be mandated not by Alderman, but
by section 18 of title 18, United States Code, added by title
III of the Omnibus Crime Control and Safe Streets Act of 1968.
Section 2518(10)[(a)] provides a specific procedure for motions to
suppress the contents of any intercepted wire or oral
communication, or evidence derived therefrom, on the grounds that
the communication was unlawfully intercepted, that the
authorization for the interception was insufficient, or that the
interception was not made in conformity with the authorization
obtained. It provides, insofar as the disclosure of intercepted
communications is concerned, that, upon the filing of a motion to
suppress by an aggrieved person, the trial judge may, in his
discretion, make available to such person and his counsel for
inspection
Page 408 U. S. 90
such portions of an intercepted communication, or evidence
derived therefrom, as the judge determines to be in the interest of
justice,
see Senate Report No. 1097, 90th Congress,2d
Session 10, 1968.
The provisions of this title will, therefore
control the disclosure of transcripts of electronic surveillances
conducted prior to June 19, 1968. Thereafter, existing statutory
law, not Alderman, will control. Consequently,
in view of
these amendments to title VII, its enactment, in conjunction
with
the provisions of title III of the 1968 act, provides the
Federal Government with a comprehensive an integrated set of
procedural rules governing suppression litigation concerning
electronic surveillance."
Id. at 35293-35294. (Emphasis added.)
The weight of the findings actually enacted by Congress in Part
A and the uniform tenor of the legislative history outweigh, in my
opinion, the ambiguity arising from the failure to actually include
a cut-off date in § 3504(a)(1).
Section 3504(a)(1) by its terms, even if read totally out of its
context and background, as the Court seeks to do, affords these
petitioners no help, because the Government has complied with its
requirements in these cases. But, more importantly, the entire
thrust of the findings actually adopted by Congress, and of the
reports of both Houses, makes it as plain as humanly possible that
this section was intended as a
limitation on existing
rights of criminal defendants, not as an
enlargement of
them. Congress, displeased with the effect of this Court's decision
in
Alderman, supra, desired to put a statute of
limitations type cut-off beyond which the Government would not be
required to go in time in order to disprove taint. Equally
displeased with the policy adopted by the Government of searching
its files for evidence of taint even when none had been alleged
Page 408 U. S. 91
by the defendant, it sought to put a stop to that practice by
requiring the Government to "affirm or deny" only where there is "a
claim by a party aggrieved that evidence is inadmissible."
Understanding of this background not only affords a complete
explanation of the language used by Congress in this section, but
illustrates the palpable error into which the Court has fallen in
construing it. The Court has, at least figuratively, stood on its
head both the language and the legislative history of this section
in order to conclude that it was intended to expand the rights of
criminal defendants.
V
Neither the Omnibus Crime Control and Safe Streets Act of 1968
nor the Organized Crime Control Act of 1970, when construed in
accordance with the canons of statutory construction traditionally
followed by this Court, supports the expansive and novel claims
asserted by these petitioners. The Court having reached a contrary
conclusion, I respectfully dissent.
[
Footnote 3/1]
In the case of respondents Egan and Walsh, the Government, in
the District Court, did not state whether it had engaged in
electronic surveillance. In this Court, however, the Government
represented that respondents Egan and Walsh had not been subjected
to electronic surveillance. In light of this development, I would
remand their case to the District Court in order to give the
respondents another opportunity to testify. For this reason,
references to "petitioners" throughout this opinion are meant to be
to only petitioners Gelbard and Parnas.
[
Footnote 3/2]
See, e.g., Blau v. United States, 340 U.
S. 159 (1950);
Rogers v. United States,
340 U. S. 367
(1951);
Curcio v. United States, 354 U.
S. 118 (1957);
United States v. George, 444
F.2d 310 (CA6 1971);
In re October 1969 Grand Jury, 435
F.2d 350 (CA7 1970).