On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
Electronic surveillance has increasingly infected criminal
trials. My hearing in the Pentagon Papers case last summer (Russo
v. Byrne,
409 U.S.
1219;
409 U.S.
1013), was the beginning of vast disclosures which showed how
seriously that trial had in fact been infected. The indictments
involved in it were indeed later dismissed, in part on the grounds
that the prosecution failed to disclose the existence and results
of wiretaps.
It has become painfully apparent that wiretapping and electronic
surveillance are a commonplace tool of those who pursue prosecution
with zeal that knows no bounds, not even the clear mandate of our
Constitution or laws. The Nation early eschewed this Machiavellian
philosophy.
'The makers of our Constitution
undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew that only a
part of the pain, pleasure and satisfactions of life are to be
found in material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They
conferred, as against the Government, the right to be let alone-the
most comprehensive of right and the right most valued by civilized
men. To protect that right, every unjustifiable
Page 412 U.S.
954 , 955
intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the
Fourth Amendment.' Olmstead v. United States,
277 U.S.
438, 478 (Brandeis, J., dissenting).
This case presents a related facet of the problem in Russo v.
Byrne, supra. Here we are concerned with witnesses called to
testify before the grand jury. See Tierney v. United States,
409 U.S. 1232,
34 L. Ed. 2d 37 (Douglas, J., dissenting from denial of
certiorari). This particular grand jury was investigating firearms
transactions between certain Irish-Americans and the Irish
Republican Army. The center of attention apparently was one Charles
Farrell Malone, who, subsequent to the proceedings below, pleaded
guilty to a federal firearms offense. Petitioners, one a friend of
Malone's and the other a babysitter for his seven children, were
subpoenaed to appear before the grand jury on October 25 and 26,
1972. Both appeared but refused to testify. Approximately one month
later, the Government advised petitioners' counsel that it would
apply for an order granting petitioners testimonial immunity, see
18 U.S.C . 6003, and in the event immunity were granted and
petitioners still refused to testify, it would seek immediately to
have petitioners held in contempt.
On November 28 petitioners were granted immunity, and the same
morning they were brought before the grand jury. They refused to
testify on the grounds, inter alia, that the questions propounded
to them were the product of illegal electronic surveillance of
themselves and their attorney. [
Footnote 1] The contempt hearing took place
Page 412 U.S.
954 , 956
at 2 p. m. that afternoon. Petitioners again asserted that they
had been subject to illegal electronic surveillance, and they
submitted an affidavit of their attorney claiming that his
telephones had been wiretapped. The Government attorney filed
affidavits disclaiming any surveillance upon petitioners or their
premises. The affiant also stated that he knew 'the identity of all
the sources of information upon which the questioning of
[petitioners] is based and no questions asked are the result of
electronic surveillance . . ..' The Government did not specifically
respond to the allegation that the attorney has been subject to
surveillance.
Based upon these affidavits and oral argument, the District
Court held petitioners in civil contempt. The District Judge
refused to hold a hearing regarding the claims of electronic
surveillance and wiretapping or to require the Government to search
its files to assure the nonexistence of electronic surveillance on
their attorney. Bail was denied, and petitioners were ordered to
jail for the life of the grand jury but not to exceed 18 months.
The Court of Appeals, however, granted bail pending appeal. On
December 29, 1972 the Court of Appeals affirmed the contempt
adjudications and revoked bail. I ordered that petitioners be
released on their own recognizance pending the timely filing and
disposition of a petition for a writ of certiorari. I now would
grant their petition and set this case for oral argument.
The sole grounds for denying a hearing was the Government
disclaimer that petitioners themselves had been subject to
electronic surveillance or that any questions to be asked were the
result of surveillance of third parties. In Alderman v. United
States,
394 U.S.
165d 176, we held that when the results of electronic
surveillance are arguably relevant to the defense, the records must
be
Page 412 U.S.
954 , 957
submitted for adversary hearing before the trial judge.
'Adversary proceedings are a major aspect of our system of criminal
justice. Their superiority as a means for attaining justice in a
given case is nowhere more evident than in those cases, such as the
ones at bar . . ..' Id., at 183. I find the failure to afford a
hearing especially troubling in this case. The Government's
affiant, an official of the Internal Security Division of the
Justice Department, stated that he had 'caused an inquiry to be
made' among certain listed federal agencies and this inquiry had
not disclosed that petitioners had been subject to any illegal
electronic surveillance. Even though the subject of the grand jury
investigation was firearms transactions with the Irish Republican
Army, the affiant had not checked with military intelligence
agencies. We have learned that the results of illegal surveillance
often are secreted away, whether for reasons of national security
or for fear of public disclosure. For that reason, no stone should
remain unturned. Although the District Judge himself was concerned
with the failure to consult with these agencies, he nevertheless
denied petitioners an evidentiary hearing either on the adequacy of
the Government's denial or the actual existence of surveillance on
petitioners by more federal agencies. Moreover, the Government
totally failed to respond to the claim that petitioners' attorney
had been subject to illegal surveillance. [
Footnote 2]
We should no longer tolerate procedures which allow the
prosecution to pyramid the secrecy of its clandestine
Page 412 U.S.
954 , 958
activities. [
Footnote 3] It
is by no means an easy task to uncover the intricacies and
interrelationships of the Executive's ever-expanding security
mechanism, but we certainly cannot even start without the rudiments
of due process.
Footnotes
Footnote 1 Petitioners'
attorney, who also represented Malone, who had been indicted before
petitioners were granted immunity, had withdrawn as counsel that
morning in order to avoid any conflict of interest. It is clear to
me that we must treat that attorney as petitioners' counsel in
considering their constitutional rights before the grand jury.
Footnote 2 In Gelbard v.
United States,
408
U.S. 41d 179, we held that a grand jury witness has standing to
challenge questions propounded to him on the ground that they are
derived from illegal electronic surveillance. The
inter-relationship of the Fourth, Fifth, and Sixth Amendments in
this area requires, in my mind, that this rule extend to
surveillance of a witness' attorney. See Tierney v. United States,
409 U.S. 1232
(Douglas, J., dissenting from denial of certiorari).
Footnote 3 As we said in
Alderman:
'An apparently innocent phrase, a
chance remark, a reference to what appears to be a neutral person
or event, the identity of a caller or the individual on the other
end of a telephone, or even the manner of speaking or using words
may have special significance to one who knows the more intimate
facts of an accused's life. And yet that information may be wholly
colorless and devoid of meaning to one less well acquainted with
all relevant circumstances. Unavoidably, this is a matter of
judgment, but in our view the task is too complex, and the margin
for error too great, to rely wholly on the in camera judgment of
the trial court to identify those records which might have
contributed to the Government's case.' 394 U.S., at 182.
