Gelbard v. United States

PETITIONER: David Gelbard
RESPONDENT: United States
LOCATION: Bay Marchand Area

DOCKET NO.: 71-110
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 408 US 41 (1972)
ARGUED: Mar 27, 1972
DECIDED: Jun 26, 1972

Daniel M. Friedman - for the United States
Jack J. Levine - for Joguez Egan and Anne Elizabeth Walsh, pro hac viceBy special leave of Court
Michael E. Tigar -

Facts of the case

Perry Paul, an alleged bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas casino, had their telephones tapped by federal agents. The agents recorded conversations between Paul and David Gelbard and between Zarowitz and Sidney Parnas. Gelbard and Parnas were called before a federal grand jury convened to investigate possible violations of federal gambling laws. When the government pressed Gelbard and Parnas to testify about these conversations, however, they refused to do so. Instead, they claimed that the wiretaps were illegal and argued that they should not be required to testify until given an opportunity to challenge the legality of the taps. The United States District Court for the Southern District of California found Gelbard and Parnas in contempt of court and committed them to custody until they agreed to testify.

On appeal, the U.S. Court of Appeals for the Ninth Circuit agreed with the district court, stating that "a witness in a grand jury proceeding has no right to resort to a court to secure authoritative advance determination concerning evidentiary matters that arise, or may arise, or to exclude evidence to be used in such a proceeding." Gelbard and Parnas then sought certiorari from the Court, pointing to a decision by the U.S. Court of Appeals for the Third Circuit vacating contempt charges against a witness under similar circumstances.


Can grand jury witnesses invoke the federal statute prohibiting illegal wiretapping as a defense to civil contempt charges based on their refusal to testify regarding information revealed by those illegal taps?

Media for Gelbard v. United States

Audio Transcription for Oral Argument - March 27, 1972 in Gelbard v. United States

Warren E. Burger:

We'll hear argument’s next in United States against Egan and Walsh, 71-263.

Mr. Friedman, you may proceed.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

This case here on a writ of certiorari to the Third Circuit presents basically the same issue as was before the Court in the last case.

It arises, however, in different factual kind, a different factual context in two respects.

William O. Douglas:

Before you start, you said in the other case that you have treated them at pages 13 and 14 to the brief in this case the Fourth Amendment Grand Jury case, but you don’t cite even Hale versus Henkel?

Daniel M. Friedman:

I think we do Mr. Justice --

William O. Douglas:

Or you don’t cite Davis versus Mississippi?

Daniel M. Friedman:

No, we don’t cite Davis versus Mississippi.

William O. Douglas:

And I would say without a citing those two cases (Inaudible) fairly say that you are pretty (Inaudible).

Daniel M. Friedman:

Well, we have -- we’ve dealt with it Mr. Justice as early as we thought was necessary to set forth the law in this area.

Perhaps, we should --

William O. Douglas:

You cite - you state on pages 13 to 14 the contrary lower court decisions which of course are relevant.

You don’t cite the lower court decisions that go against the Government nor the decisions in this Court?

Daniel M. Friedman:

Well, we think Mr. --

William O. Douglas:

I just wanted to include the (Inaudible) short statement on it.

What do you think the law of this Court is as of March 27, 1972?

Daniel M. Friedman:

I would be happy to Mr. Justice.

We think the law of this Court as of today is that witnesses do not have the (Inaudible).

We think that we’ve cited cases for example, Costello and Blue which recognized the broad role of the Grand Jury and the fact that evidence improperly obtained before the Grand Jury is not (Inaudible)

William O. Douglas:

(Inaudible) 250 US as I read it, the Fourth Amendment was involved.

Daniel M. Friedman:

No, the Blair Case, which unfortunately we have mis-described as the Civil Liberties Union points out, it did not involve the Fourth Amendment, but it did announce the principle that a witness before Grand Jury could not even challenge the constitutionality (Voice Overlap)

(Inaudible) hasn’t left the department’s view on the Fourth Amendment (Voice Overlap).

Daniel M. Friedman:

I would be (Voice Overlap)

The Grand Jury case is (Voice Overlap)

Daniel M. Friedman:

I would be happy to submit such memorandum Mr. Justice.

Now, the two distinctions factually between this case and the preceding case is this.

In the preceding case, there was conceivably court-authorized surveillance and the Government acknowledged that the petitioners there had been overheard on that surveillance.

In this case, the Government has never admitted any surveillance and indeed, in it’s brief in this Court, it denies that surveillance took place.

Byron R. White:

So now, you’ve finally have made a -- taken a position one way or another?