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

ADVOCATES:
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.

Question

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?

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?

Daniel M. Friedman:

We have taken the position there is no (Voice Overlap).

Byron R. White:

Section 3504 rather requires you to do it before you’ve been making — force some decision making on a task on a court I suppose.

Daniel M. Friedman:

Only Mr. Justice, 3504 requires it only if 3504 applies in the case of a witness before a Grand Jury.

Byron R. White:

But don’t you think it makes quite a bit of difference whether you admit that there was a tap or deny that there was a tap or you deny it was a legal or admit it was a legal in terms of what our problems are?

Daniel M. Friedman:

I think it does except Mr. Justice (Voice Overlap)

Byron R. White:

So you now say no in a exception to place it off?

Daniel M. Friedman:

We say that there was no — if I may say, there was no overhearing of either of these witnesses.

We do not take any position on whether somebody is telling (Voice Overlap).

Byron R. White:

What kind of case have we got here, now?

Daniel M. Friedman:

We — the Court of Appeals decided this case on the assumption that in fact, there was overhearing because the Government had not denied.

Byron R. White:

I must say, let’s assume in a District Court the Government would come in and certified, however, you normally do it, there had been no overhearing of these witnesses.

That would have been the end of the matter, wouldn’t it?

Daniel M. Friedman:

Hopefully, but in some situations, the District Courts in some of these cases have said for example that the affidavit that was submitted denying the overhearing wasn’t sufficient and there’d been situations in which despite that, they’ve been (Voice Overlap) the proceeding.

Byron R. White:

I know but why should we have to deal with difficult constitutional or statutory question just because the Government is unwilling to say whether there was an overhearing or not or whether was it illegal in their view?

Daniel M. Friedman:

Well, all I can say Mr. Justice is that we did not take any position on this before the Lower Courts because it was our view that the witnesses were not entitled.

Byron R. White:

This is just an assume sort of a case.

Let’s assume it is illegal, so that we can get some decisions on something?

Daniel M. Friedman:

Well but it’s not quite that. Let me say that the (Voice Overlap).

Byron R. White:

But why didn’t the Government say yes or no in the District Court?

Daniel M. Friedman:

Because all I can answer Mr. Justice is that the Government in this cases has taken — consistently taken the position in this type of situation that a witness has no right to challenge this question and the respondents (Voice Overlap).

I know.

That is fine but there wouldn’t have been any questions to be decided if the Government had said there wasn’t any overhearing anyway.

There wouldn’t have been — this case would never have been here?

Daniel M. Friedman:

If the respondents had concurred.

They now object to this statement on our part and say they might be hearing on (Voice Overlap)

I know but the District Judge would have decided one way or another, wouldn’t he, whether there was or not?

Daniel M. Friedman:

It’s also Mr. Justice.

It’s not quite as that simple matter for the Government in these situations every time a witness makes this claim to be able to answer then and there there has or hasn’t been overhearing.

I know, but wouldn’t the issue have been trashed out in a District Court if there had been an issue made of it?

Daniel M. Friedman:

I assume so.

And the District Court would’ve decided it.

They may have been decided it for you and if you have, this case would’ve never been done here.

Daniel M. Friedman:

That is correct.

Thurgood Marshall:

But Mr. Friedman, suppose the question I asked of Mr. Tigar.

I suppose the man filed an affidavit that says that the US Attorney beat me over the head until I confessed, would the Government feel obliged to deny that?

Daniel M. Friedman:

I would think so.

Thurgood Marshall:

Well, why not deny this, if it’s true?

Daniel M. Friedman:

Well, I’m sorry.

In what context was this?

I’m sorry.

Thurgood Marshall:

A motion to suppress.

Daniel M. Friedman:

A motion to suppress, I would think the Government would deny it, but it seems if that would be I assume an independent motion to suppress.

Let me put the case if I may (Voice Overlap).

Thurgood Marshall:

I just don’t see why the Government can’t deny it?

Does the Government deny now?

Daniel M. Friedman:

Deny?

Thurgood Marshall:

You do deny it now.

Daniel M. Friedman:

Yes, we do deny it.

Yes, we do.

We said there has been no overhearing of either of these two ladies.

Thurgood Marshall:

When did you find that out?

Daniel M. Friedman:

I don’t know when we found it out Mr. Justice.

Byron R. White:

You found (Inaudible) you usually do unless (Inaudible) other cases, you looked around and you often certified in this Court or in some other courts, there was not a listening?

Daniel M. Friedman:

I assume that when this demand was made, this triggered an investigation and at some point in the proceedings, we concluded that there was no basis to think (Voice Overlap).

William J. Brennan, Jr.:

Well Mr. Friedman, in light of what you now say, why shouldn’t we just vacate this and send it back and let you start all over again in the District Court?

Why should we grapple with these problems if the case is going to disappear?

Daniel M. Friedman:

Well, I think one problem in the face of this case, in this case as distinguished from other cases, the claim is now made that they deny this.

William J. Brennan, Jr.:

Well alright, then you’ll have to — you’ll have an issue then that shall be determined in the District Court but why should we?

Don’t we have enough things to do around here without dealing with cases on hypothesis?

Daniel M. Friedman:

Well, the issue of course is before the Court in the preceding case.

Daniel M. Friedman:

And in this case, whether we have this decision off the Court of Appeals, that was based on the assumption that there had been illegal wire tapping.

William J. Brennan, Jr.:

Well, I take it that we send it back to the Court of Appeals, opinion would be vacated too, wouldn’t it?

Daniel M. Friedman:

Well, if you vacated the judgment, I think it still have the precedent standing.

It will be weakened a good bit.

William J. Brennan, Jr.:

But every time we (Voice Overlap).

Byron R. White:

There wasn’t any wire tapping.

It’s just an advisory opinion anyway.

Daniel M. Friedman:

It’s perhaps an advisory opinion though I suspect we’ll have considerable impact before the Third Circuit and while the District Court is in the Third Circuit.

Now, (Voice Overlap).

Thurgood Marshall:

Compared with one of the other cases we had this morning, as of right now, what is the “case and controversy” that’s before us?

Daniel M. Friedman:

The case of controversy is what (Voice Overlap).

Thurgood Marshall:

Is the opinion of a court not the judgment?

It’s opinion, isn’t it?

Daniel M. Friedman:

Well, I think the case of controversy Mr. Justice is whether or not these witnesses were properly held in contempt for refusing to answer the questions.

That’s the case of controversy and that depends on whether they were required to answer the questions in the face of their claim of illegal electronic surveillance.

That seem to me is the case of controversy and there still is a controversy.

They still, I’m sure when the counsel gets up will vigorously deny that they had any obligation and they will say, I am sure that despite the Government’s denial, they’re entitled with hearing before they had to testify.

Thurgood Marshall:

But I just can’t see how both of you together convince us to take the case where the substance is now gone?

Daniel M. Friedman:

Well, I agree.(Voice Overlap)

Thurgood Marshall:

(Voice Overlap) to us doing it.

What’s wrong with sending it back and let you stand up in the Court of Appeals or the District Court and say no, there was no tap?

Daniel M. Friedman:

Well, I cannot find any objection to doing that except all I can say Mr. Justice to that is that (Voice Overlap).

Thurgood Marshall:

The opinion is still there.

Daniel M. Friedman:

The opinion is still there and that the Court of Appeals decided it on that basis.

The Court of Appeals then has to rule in this case.

Thurgood Marshall:

Well, if you’ve told the Court of Appeals what you are telling us, they wouldn’t have decided that way maybe?

Daniel M. Friedman:

The Court of Appeals announced the rule in this case.

Thurgood Marshall:

But the whole point is the facts haven’t changed from the time they came to the file until now.

The facts haven’t changed is that the Government gets a little time to catch up with the facts.[Laughter]

Daniel M. Friedman:

The Court of Appeals said, it amended its opinion subsequently to read as follows, it says, “Since” (Voice Overlap).

Byron R. White:

Where are you reading now?

Daniel M. Friedman:

This is from an addendum to the Court of Appeals opinion which is contained in Sister Egan’s brief in opposition in this case at page 16.

It’s this white document.

And what the Court of Appeals said was, “Since Sister Egan has not yet been afforded a hearing regarding her allegations of illegal electronic surveillance by the Government, for the purpose of this appeal, we assume her allegations to be true.”

So the Court of Appeals seems to have announced a rule that where the Government has not denied these allegations, the case will be decided on the basis that those allegations are true and it proceeded to decide the case on that basis.

Thurgood Marshall:

(Inaudible) at some place else (Inaudible) law that where allegations are made and not denied, they consider to be true.

Am I right (Inaudible)?

Daniel M. Friedman:

That’s the normal rules of pleading.

Now, the other aspect of this case is that unlike Mr. Gelbard or Mr. Parnas, both of these two ladies before being called before the Grand Jury was given full transactional immunity, not the narrowly used immunity, but the full transactional immunity, which means that neither of these witnesses could be subject to any criminal prosecution or penalty for any testimony they gave.

The facts with respect to both of these ladies are very similar.

In January 1971, Sister Egan who is a Catholic Nun and the other respondent, Ms. Walsh is not, was subpoenaed to appear before a Grand Jury sitting in Harrisburg, Pennsylvania investigating various alleged violations of the criminal code.

This is the same Grand Jury that returned the indictment in the Barragan case, the first indictment in that case was returned two days before and Sister Egan was named as an un-indicted co-conspirator.

Sister Egan appeared before the Grand Jury and refused to answer any questions claiming that this would violate her rights under the Fifth Amendment.

And following this, she was first given more limited so called used immunity and then the day after when it became apparent to the Government that she would continue to assert her privilege under the Firth Amendment, she was given the full transactional immunity.

She was then called before the Grand Jury and refused to answer any questions other than giving her name and her address.

She was asked and refused to answer approximately 70 or 80 other questions and following her refusal, the District Court held her in civil contempt and ordered her committed until she purged the content.

She gave six different grounds for refusing to answer the questions and the pertinent one set forth at page 54 of the record here, which this is the provision relating to the alleged illegal wiretaps, it’s number four in the top of page 54.

She said, “The evidence on the basis of which I have been named as a non-indicted co-conspirator, subpoenaed to testify and answer questions was secured by illegal wiretaps.

In addition, all or some of the telephone communications monitored by the United States government, involved communications within the Roman Catholic Church of America and specifically, between my provincial headquarters and the offices of the church in New York, Rome and throughout the United States.”

The second witness, Ms. Walsh was called before the Grand Jury in April of 1971 three months later.

She was intentionally given full transactional immunity.

She refused to answer all the questions put to her before the Grand Jury and the same thing happened.

Both of these ladies were therefore held in civil contempt.

A divided Third Circuit reversed by a vote of five to three.

All members of the court, all five Judges agreed that the 1968 Act gave a witness before a Grand Jury the right to challenge the evidence, which led the Grand Jury to call the witness.

In addition, two of the Judges also believed that the Fourth Amendment gave the witnesses this right.

The Government’s arguments in this case are substantially the same as those, which was made in the last case both on under the Fourth Amendment and under the statue.

And I would therefore like to turn briefly to the argument that I was making when the Court — of the argument on the previous case was terminated and that is the applicability of Section 3504 to this claim.

3504 is set forth in our brief in the Egan case at page 33 and I had previously indicated that what it did was to limit the total amount of hearings that would be required in cases of electronic surveillance occurring prior to 1968.

We have that cut off date.

Daniel M. Friedman:

And then it goes on and say, if there’s any hearing before a Grand Jury upon a claim by a party of aggrieved, that evidence is inadmissible because it is the primary product of an unlawful act defined as electronic surveillance or the exploitation of such act.

The opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.

Now, although this refers to the making of such a claim at a proceeding before a Grand Jury, the claim to be entertained must be made by a party aggrieved and in discussing this Section, the legislative history speaks of someone who makes a claim, speaks of a claim by a defendant, it uses the word by a defendant withstanding to challenge the unfair practices.

A defendant is ordinarily not viewed as someone who is a witness before a Grand Jury.

And furthermore, standing comes again to the question I have previously discussed as to whether or not, whether or not a mere witness before a Grand Jury has standing.

And it seems to us would be most anomalous we think that the Congress, which in this statute in 1970 was attempting to reduce the volume of litigation growing out of claims of illegal electronic surveillance, would at the same time have given to Grand Jury witnesses a right to challenge evidence before a Grand Jury that they didn’t have under the 1968 Act.

We think that the whole basic purpose of this statute was to reduce the amount of litigation relating to surveillances taking place before June 1968.

And indeed, the legislative history indicates that Senator McClellan stated that this Section was limited to surveillance that occurred prior to June 1968.

And of course, we deny surveillance, but if there was any surveillance in the case, it would appear that it would took place before that date.

Now, I would like to now turn to another argument in this case.

Potter Stewart:

Before you leave 3504, you probably — is this the whole Section on pages 33 and 34 of Egan case?

Daniel M. Friedman:

Yes.

Potter Stewart:

It doesn’t say what happens after the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.

It doesn’t (Voice Overlap) say what happens if it was denied or (Voice Overlap).

Daniel M. Friedman:

I assume, I think with fair reading of this is if the Government denies it, presumably that’s the end of it unless (Voice Overlap).

Potter Stewart:

Well, it doesn’t say so.

Daniel M. Friedman:

It doesn’t say so.

But it does go on then to say that in the event — presumably if the Government admits it, it then goes on it seems to me — and that I think is a preliminary determination.

The first thing to find out is whether the Government acknowledges or it denies.

But if the Government acknowledges it, (Voice Overlap).

Potter Stewart:

But you read it that if the Government denies, then that’s the end of it.

Daniel M. Friedman:

I would think so, yes.

Potter Stewart:

Well, that’s not I know the issue here.

Daniel M. Friedman:

And then if the Government acknowledges it, if they meet the standards of the two next subsections, then you have a hearing on it.

Now, the argument is made by the respondents in this case and by position adopted by some of the Judges of the Court of Appeals that it would violate Section 2510, if the Government used this evidence before the Grand Jury, that is they say 2510 prohibits the use of any evidence before the Grand Jury if the evidence is obtained in violation of the statute.

And therefore, the argument is that the District Court should not lend its authority in effect to permit or force the prosecutor to violate the statute and commit a crime.

I think this argument fails to take adequate account of the precise language of the statute.

The statute says, not that the recede in evidence of any intercepted communication that is prohibited if it violates the statute.

What it says is it’s prohibited if the disclosure of that information would be in violation of this chapter.

That is the prohibition is the use before a Grand Jury or a court of any evidence if the disclosure of that would violate this chapter.

Daniel M. Friedman:

That’s in Section 2515 at page 60 of the Egan brief.

Now, I’ve shifted to the Egan, of the respondent’s Egan’s brief.

So therefore, we must look to other Sections of the statute to ascertain what disclosure is prohibited and the prohibitions on disclosure are contained in 2511, which begins at page 53 of the Egan’s brief and the critical sections or subsections C and D on page 54 and they prohibit willful disclosure or willful use of any intercepted communication knowing or having reason to know that the information was obtained through the interception in violation of this subsection.

That is disclosure is only illegal it seems to us if in fact the person using it knew or had reason to know.

Now, in this case, assuming arguendo was an interception here, there’s another provision of this statute.

Subsection 3 at pages 55 to 56 which was before this Court several months ago in the Keith (ph) case which is US against United States District Court at Subsection 3, at pages 55 to 56 which says nothing in this chapter shall limit the constitutional power of the precedence, about halfway down to first full paragraph on page 6, to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or violence or other unlawful means or against any clear and present danger to the structure or existence of the Government.

And it goes on and says the contents of any communication intercepted by authority of the President and the exercise of the foregoing powers maybe received in evidence in any trials here and the other proceeding only when such interception was reasonable.

Our position is that as long as it has not been definitively determined that the interception without a warrant in national security cases is illegal and the court of course will decide that in the Keith (ph) case at least as long as that is the situation, the prosecutor could not be charged with knowing or having reason to know that any evidence obtained as a result of an allegedly illegal interception of anyone’s telephone conversation in this field, that the disclosure of that would be in violation because the prosecutor as far as he was concerned had every reason to believe that at least at that point, it was permissible to conduct any such electronic surveillance.

Potter Stewart:

These arguments you didn’t make in the last case just because you didn’t have — it’s equally applicable to both cases, is it not?

Daniel M. Friedman:

Oh yes.

Potter Stewart:

The arguments you’re now making.

Daniel M. Friedman:

In fact, it’s more applicable in the last case and it’s clear in the last case, it seems to me that a prosecutor who knows that the interception has resulted from an order of the District Court cannot be charged with knowing or having reason to know that it is in fact illegal because of some allegations that there were some irregularities in the thing.

I mean (Voice Overlap).

Potter Stewart:

This argument is equally applicable to both cases, except a little more so to the previous ones.

Daniel M. Friedman:

That’s right.

Potter Stewart:

And not necessary on the other hand for you to win either case.

It’s an alternative argument, isn’t that correct?

Daniel M. Friedman:

That is correct.

Potter Stewart:

In both cases?

Daniel M. Friedman:

Yes, correct Mr. Justice.

And then in conclusion, I just like to say one other thing which is in this whole area, that it’s very easy for witnesses before a Grand Jury to make allegations that they have been subjected to illegal wire tapping.

That is coming all the time.

The allegation is that they’ve been subjected to illegal wire tapping.

In this case, at page 87 and 88 of the record is a motion made by Ms. Walsh for disclosure of electronic surveillance and there’s a long list of things she wanted to have disclosed.

Items one to Z, various things and it’s not easy for the Government to answer these questions.

If for example, A’s telephone were tapped, over the period of a week, they might hear hundreds of telephone (Voice Overlap).

Byron R. White:

You say that the Government really should have the privilege of either complying with disclosure or having litigated whether the person making the motion is an aggrieved person, that you should have the — you are saying you are entitled to have your question answered?

Daniel M. Friedman:

Precisely.

Byron R. White:

And even though that involves difficult constitutional and statutory questions perhaps?

Daniel M. Friedman:

We think that’s what the statute provides and we think the witness before the Grand Jury is fully protected.

So when a witness says or when a person makes his motion for disclosure as in this case and says, “I am an aggrieved person B, please disclose.”

You may deny that they’re an aggrieved person and until that is settled, even though it involves an appeal here, you don’t have to disclose.

Daniel M. Friedman:

Because once this issue was decided Mr. Justice by this Court whether or not a witness is an aggrieved person, it seems to me, that will end that aspect of the litigation.

Byron R. White:

Well then unless you lose.

Warren E. Burger:

Mr. Levine.

Jack J. Levine:

Mr. Chief Justice and may it please the Court.

Let me say a word or two about the question that’s come up with regard to the procedural posture that this case is in now.

The position that the Government took in the trial court was that they would refuse to affirm or deny the existence of the surveillance not because they didn’t know, but because the witness had no such right.

And indeed in the Court of Appeals, Government counsel was asked by Chief Judge Hasty, “Do you want to take a position on that or words to that effect” and the Government counsel as I recall responded, “No, our position is that it’s irrelevant because the witness doesn’t have the right to raise the issue.”

There was no denial in this case until the Government filed its petition for certiorari.

In any allegations with regard to the existence or non-existence of surveillance in this case is outside of the record.

I might also say in that regard that in as much as the Government refuses to affirm or deny surveillance in the District Court, they also refuse to say whether or not a court order or a national security tap was involved.

So that to the extent that the Government argues that it may not be a violation of the criminal section of the statute, if there is such a specification, their representation I would submit is likewise irrelevant.

In the posture that this case was decided in the District Court and on appeal, the Government refused to say anything.

And on that basis, the court assumed that there may have been surveillance and that more important decided that the witness had a right to raise the issue and had the right to get a reply from the Government.

Now, if we read the Government’s brief in the Egan case, and indeed in the early portion of Government’s counsel argument, there is an awful lot of discussion of the exclusionary rule.

And I think it’s most important to analyze why it is that the Government relies so heavily upon what they call the exclusionary rule and past cases dealing with the use of testimony in subsequent proceedings.

Their argument and their use of the exclusionary rule is based upon a critical premise which we submit is false.

And that premise is that Sister Egan in the trial court sought to invoke the exclusionary remedy in order to remedy a past and prior violation of her statutory rights independent of what was happening in the Grand Jury.

And I would submit to this court that that premise is false.

And that really what we were involved with here is a question of whether or not it violates the law to compel within the Grand Jury room both statute and constitutional, within the Grand Jury room divulgence and disclosure of illegally ascertained conversations.

And when the court asked the question, “Well, what’s the harm to the witness if the evidence isn’t being used against him or her,” the answer is that the harm to the witness comes from the divulgence and the disclosure, which is prohibited by the statute and as you look at Section 20 —

Byron R. White:

What is the disclosure in the Grand Jury, if someone just asked a person about some events and it doesn’t involve putting anything out of an overheard conversation or even referring to it, but nevertheless, it had its roots in that conversation, is that disclosure?

Jack J. Levine:

Well, that would be used — I would submit that that would be used under — I forget, C is used and I think Subsection D is disclosure on (Voice Overlap).

Byron R. White:

Well what was involved here did you say?

Disclosure of the conversations or use or both?

Jack J. Levine:

Well, we never found out because there was (Voice Overlap).

Byron R. White:

But what are we arguing about then?

What are we arguing about now according to conversation that was heard?

Jack J. Levine:

Questions as to the purport and meaning of the conversation, what was said and questions of that kind and I would suggest to the Court in that context that the statutory definition of the contents of a communication includes not only the actual words spoken, but the purport and content of the message.

Jack J. Levine:

And so as we look at 2511 C and D, we find that not only has the actual interception been deemed an invasion of rights of privacy, but the use and the disclosure as well had been made a statutory crime.

And in addition to 2511 C and D, we have 2515 which has already been referred to in the previous arguments.

2515 is an absolute prohibition against the use or introduction in a Grand Jury of evidence obtained in violation of any provision of the chapter.

And I might mention in that context Your Honors that 2517, Subsection 3 specifically says that there can be no testimony in a Grand Jury as to illegally — as to electronic surveillance evidence unless that evidence was obtained by means authorized by the chapter.

So not only do we have the criminal sanction in 2515, we have another separate section which talks about use of evidence in a Grand Jury on the condition that it’s obtained by means authorized under the statute.

Now, the Government has suggested that notwithstanding the broad language of 2515 and the existence of the criminal sections and so on, that there are some limitation imposed by the motion to suppress section which is 2518 Subsection 10 A.

The first requirement of 2518 (10) (a) is that Sister Egan being aggrieved person and an aggrieved person is statutorily defined as a person whose own conversations were intercepted, whose own wire or all communication were overheard.

There is no requirement that such a person be a defendant in a criminal proceeding and indeed, Congress expressly rejected that condition in the statute.

In 1967, Senator McClellan introduced the bill into the Senate, which defined aggrieved party as a defendant in a criminal proceeding.

Now that bill wasn’t passed and in 1968, Senator Hruska introduced a subsequent bill which changed that language and defined aggrieved person as a party to a communication.

And the legislative history isn’t cited in the brief, but a section by section comparison of these two provisions can be found in the Congressional record at Volume 114, Part 10, 90th Congress 2nd Session, Page 13211.

Now, in addition to the aggrieved party terminology in the — aggrieved person terminology in the section, which Sister Egan clearly is, there can be no doubt that a Grand Jury inquiry constitutes a proceeding as that word is used in a statute and indeed Hale versus Henkel which was mentioned earlier by Mr. Justice Douglas is most opposite in that regard as our cases like Capaldi (ph) versus the United States or other cases, which arise in the context of contempt hearings held to adjudicate issues that arise in the Grand Jury.

And in addition to the meaning of the word proceeding, there can be no doubt that a proceeding on an order compelling testimony initiated by the Government is also a proceeding before a court under authority of the United States which is the language in 2518 (10) (a) and in an application on a Government — a hearing on a Government application for a contempt would likewise be covered by the statute.

And indeed, judge Gibbons’ dissent in the Egan case in the Third Circuit concedes this point.

It concedes that notwithstanding any issue as to whether or not a Grand Jury is covered certainly in a contempt application or hearing in an order to compel testimony would be covered by the statute and I believe he refers to that as a non-issue.

Now, the Government draws — tries to draw support from the omission of the term Grand Jury in 2518 (10) (a) and it parallels that omission with the omission of legislative committees and it says that those two omissions indicate an intent on the part of Congress not to make the 2515 remedy available to witnesses before such bodies.

Now, to reference the omission to legislative committees is really very interesting because the analysis, let me step back for a second.

As we’ve analyzed 2518 (10) (a), we’ve drawn a distinction between the situation of an actual witness as opposed to someone who isn’t subpoenaed, and therefore, not in the Grand Jury or not brought before the court, a distinction between parties and non-parties and there’s a very curious sense in the legislative history of 2518 (10) (a) from which we draw support for our position on the distinction.

The sense and I believe it may have been referred to by Government counsel in explaining the omission of legislative committees says, “Nor was this provision intended to grant to the Federal Courts’ jurisdiction over the Congress itself.”

And the case cited is Hearst versus Black.

Now, I’ll come to Hearst versus Black in a sense, but there’s something very curious about the sense from the legislative history that I just spoke off.

Not only does it appear to contradict the inclusion of legislative committees in 2515, it also appears to conflict with the line of cases in this Court, most notably, Watkins versus the United States, which do hold that the Federal Courts do have the power and indeed the duty to review the propriety of congressional action if and when a legislative witness is brought to a contempt proceeding.

And then we turn to Hearst versus Black which is cited in the Government’s brief.

Hearst versus Black was a case in which a Senate subcommittees subpoenaed telegraph records from the telegraph company and not from Hearst.

Presumably, those records related to Hearst and he saw it to intervene to prevent the committees’ use of those documents in its proceeding.

And what the court said was that in as much as Mr. Hearst hadn’t been subpoenaed, wasn’t before the committee, hadn’t been ordered to testify, he couldn’t intervene and simply stopped the proceedings.

And most significant, the case went on to say that if Hearst had been before the committee as a subpoenaed witness, he would have the right to litigate the lawfulness of the committee’s action.

And that’s precisely what we’re talking about in our analysis of 2518 (10) (a) when we say there’s a world of difference and it’s not too hard to ascertain and answer to the question that Mr. Justice White I think asked earlier between someone who subpoenaed, and therefore, before the court to compel testimony or any contempt hearing and someone who isn’t subpoenaed.

There’s a difference between Sister Egan whose called in and compelled to divulge and disclose her own conversations as opposed to a third party agent or somebody else who comes in and testifies without her knowledge.

Now, she may not be able to notwithstanding the fact that it would be still be a crime if the agent did it, she may not be able to stop that.

Jack J. Levine:

And such a holding would be consistent with cases like Hearst and Blue versus United States which I will come to in a moment.

There’s a very important distinction between someone who is subpoenaed and is compelled to testify and someone whose own rights of privacy may have been invaded, but not by the actions of the prosecutor or the Grand Jury or the Court.

Now, the subject or 18 U.S.C. 3504 has come up and I think that that Section is absolutely crucial.

The Government has said that what could be more anomalous than Congress using in 3504 widening the rights that hadn’t been made available in Title III which was passed in 1968 because the Government’s position is that Title III didn’t give the witness any rights.

Well, I suggest to the court that it would’ve been very anomalous if 3504 had changed Title III and that in fact it did didn’t change Title III and that moreover, the inclusion of Grand Juries in 3504 was an express adoption of the provisions of Title III which had been enacted two years earlier and moreover in that context, the Government’s position that since a witness isn’t a party as such to a Grand Jury proceeding, he or she doesn’t have any rights to object to surveillance, that position makes the plain language of 3504 nonsensible because not only does 3504 include the term Grand Jury, it also talks about aggrieved parties and clearly, what that Section would envision (Voice Overlap).

(Inaudible)

Jack J. Levine:

I am sorry.

Thurgood Marshall:

Who were the parties?

Jack J. Levine:

Who were the parties?

Thurgood Marshall:

Yes sir.

Jack J. Levine:

Well, the witnesses in the proceeding.

Thurgood Marshall:

(Inaudible) except the Government. You don’t become a party until the Government indicts you.

Jack J. Levine:

Well, I would suggest sir that you become party to a judicial proceeding if and when the Government seeks affirmatively to bring you in before a Judge and seek to use the power of the court to compel your testimony.

William J. Brennan, Jr.:

Well, anyway, I thought the question of party was whether party to an oral communication, isn’t it, aggrieved means party to an oral communication?

Jack J. Levine:

Yes sir.

William J. Brennan, Jr.:

An intercepted oral communication, is that what you’re talking about?

Jack J. Levine:

No sir, I understood Mr. Justice Marshall’s question to be who would be a party to a Grand Jury proceeding.

Am I not correct?

Thurgood Marshall:

(Inaudible) the party or not, the Grand Jury, they’re talking about aggrieved body.

They’re not talking about parties in the official sense in the Grand Jury.

Jack J. Levine:

No Your Honor, I wasn’t talking about (Voice Overlap).

Thurgood Marshall:

Well, that’s what I was trying to find out.

Jack J. Levine:

No, I was talking about the significance of being involuntarily made a party to a court proceeding in which the evidence is sought to be compelled from you and then further being made a party to a contempt proceeding and what our position is and indeed there was no pre-testimony motion to suppress file in this case is that if and when the Government seeks affirmatively to invoke the power of the court, the court is duty bound not to compel testimony to compel divulgence and disclosure in express violation in expressed violation of 2511 (c) and (d) unless and until there has been a determination that the surveillance was lawful.

Byron R. White:

Do you understand the Government’s position to be that no one may challenge on the basis of being in conflict with this Act, the introduction of any evidence before a Grand Jury?

Jack J. Levine:

Your Honor, there are — you’re talking about post indictment?

Byron R. White:

You don’t have to add any time.

Jack J. Levine:

I would say —

Byron R. White:

The Government clearly claims that no witness before a Grand Jury may challenge the illegality of the evidence the Government is using.

Jack J. Levine:

Yes sir.

Byron R. White:

Now, how about anybody else?

Jack J. Levine:

Well, the defendant can’t challenge it because he hasn’t been indicted yet presumably and once he is indicted and you present with a Blue kind of situation, then he’s got adequate pretrial, trial and post trial motions that he can use.

Byron R. White:

But you think may the defendant challenge the indictment itself?

Jack J. Levine:

So far as I know, there aren’t any constitutional cases on that.

There is — I can refer the Court to (Voice Overlap).

Byron R. White:

But it seems that 3504, at least contemplates the possibility that somebody maybe challenging the introduction of some evidence before a Grand Jury?

Jack J. Levine:

Right and I would suggest that also in that sense, in other words because it talks about defending with (Voice Overlap).

Byron R. White:

It talks about a Grand Jury.

Jack J. Levine:

Yes sir and certainly a witness would have that — would be one (Voice Overlap).

Byron R. White:

I don’t know whether a witness, but somebody, they’re certainly seem to contemplate that some exclusionary arguments might go on before a Grand Jury in some context in connection with somebody.

Jack J. Levine:

Yes sir, I would say that is true.

Byron R. White:

Who are they?

Who are those people?

Jack J. Levine:

Well, (Voice Overlap).

Byron R. White:

You say it’s a witness?

Jack J. Levine:

It’s clearly the witness.

Byron R. White:

Who else might it be?

Is there anyone else before a Grand Jury but a witness?

Jack J. Levine:

I can’t think of anybody else, no.

Quite frankly I haven’t given it much thought.

I mean, it appears to me that the whole (Voice Overlap).

Byron R. White:

But that’s your argument though, isn’t it?

Jack J. Levine:

Yes sir, but as far as I can conceive, a witness is clearly involved in a Grand Jury proceeding if and when he or she is brought to a contempt or proceeding or a proceeding at an order to compel Grand Jury testimony, the witness would have a right to have an affirmance or a denial of surveillance.

William H. Rehnquist:

Mr. Levine.

Jack J. Levine:

Yes sir.

William H. Rehnquist:

Is it your position that Section 2518 (10) (a), even though it doesn’t expressly include the word Grand Jury covers Grand Jury proceedings?

Jack J. Levine:

Yes sir, it is.

William H. Rehnquist:

How do you confer the omission of the inclusion of the term Grand Jury?

Jack J. Levine:

Your Honor, the only way I can account for is by this distinction that I’ve drawn between parties and non-parties.

William H. Rehnquist:

But there can be parties and non-parties in any number of situations.

That would’ve been the core of substantive forum in which they were participating?

Jack J. Levine:

Well yes sir it would.

Take a situation where there’s been some illegal– there’s been an invasion of privacy under the statute and the person whose own privacy was invaded was not subpoenaed before the Grand Jury, but some third part was called as a witness to introduce the tapes or whatever.

Now, that would be a situation in which the person whose rights were invaded would not be under 2518 (10) (a), would not be able to keep that evidence out of the Grand Jury because he or she wasn’t an actually before it.

Now, that’s the kind of example I could think off of a situation where rights could be deemed violated under — in a Grand Jury, but it would make sense to exclude — well, I am not being — What I’m basically saying is that there are some situations where you would have an invasion of rights in the Grand Jury, but there wouldn’t be an appropriate forum in which the person whose rights were invaded would be able to litigate the issue.

And traditionally, the way these cases have come up is that you don’t get a decision from the foreman of the Grand Jury or whoever as to whether or not your rights are being violated.

You refuse to testify for one reason or another and then you brought before the court and our position is that anybody whose put in that position does have standing under the statute.

William H. Rehnquist:

Because it refers to the word court, you say that’s efficient even though it doesn’t mention Grand Jury?

Jack J. Levine:

Well I think its sufficient either way and I think that (Voice Overlap).

William H. Rehnquist:

Why did Congress include Grand Jury in one Section and not in another?

Jack J. Levine:

Well, for the same reason that they included legislative committee in one section and not in another.

There maybe situations where your rights are being violated there, but in as much you’re not a party, there’s nothing you can do about it.

In that context, you maybe able to file a civil suit or something like that.

That’s the only way I can account for the omission and I think that for present purposes and in the way in which this case arose, the issue may not be crucial because there wasn’t any motion to suppress for a pre-testimony.

The issue arouse at the — there was a refusal to answer and then the witness Sister Egan was brought to the hearing on the application to compel testimony and then the contempt proceeding.

Now really, I think that it’s important to understand that what the Government is saying in this case is that not withstanding 2511 (c) and (d) and not withstanding 2515, and not withstanding 3504, that these statutes just don’t apply because Grand Jury doesn’t mean Grand Jury.

It means something else and to divulge or disclose doesn’t mean that, it means something else.

And not only are they urging that position for the proposition that the witness doesn’t have standing, they’re saying in addition that when the witness is brought before the court, the court’s got no power to do anything about it and in fact, it has to compel without choice, the commission of a statutory crime and through the express provisions of 2511.

And I would suggest to this Court that that’s an unacceptable interpretation both of the statute and apart from the statute, under the supervisory power of this Court.

And I would suggest the case like Elkins versus United States where you’ve got the imperative of judicial integrity involved and indeed the express legislative finding in Title III, in Section 801 (b) as enacted was the need to protect the integrity of court and administrative proceedings.

And I suggest to this Court that Judge Ryde was correct in his concurring opinion in DC Circuit when he said that to hold otherwise would be the stand our whole system of criminal justice on its head.

William J. Brennan, Jr.:

Mr. Levine.

Jack J. Levine:

Yes sir.

William J. Brennan, Jr.:

What would have been your position in the District Court if the Government had done what its done on this Court and denied in the words of 3504 the occurrence of the alleged unlawful act?

Jack J. Levine:

The denial by way of affidavit in the absence of any evidence to the contrary has been accepted by every court that’s had this question before it.

It has happened in the Third Circuit since Egan came down.

It has happened in the (Voice Overlap).

William J. Brennan, Jr.:

You mean that if a Government has come in with an affidavit and denied any wiretap and the interception of any conversation with Sister Egan, that would’ve been accepted without more, is that what you’re saying?

Jack J. Levine:

In the absence — I would say that that’s probably what would happen.

Yes sir.

William J. Brennan, Jr.:

And then you would not have been here?

Jack J. Levine:

I think that’s right, yes.

I don’t think there’s any question about it and indeed the other case (Voice Overlap).

William J. Brennan, Jr.:

Well now, the Government tells us here, it does what perhaps it should have done in the District Court.

Jack J. Levine:

Well, all I can say is that so far as Sister Egan is concerned, had they done that there, this case wouldn’t be here, and she would have either testified or or in jail, but in the process (Voice Overlap).

William J. Brennan, Jr.:

Why should we let this go back to the District Court and vacate everything that’s come up here and let it go back and start over again?

Byron R. White:

Or Sister Egan would be sentenced to contempt without this (Voice Overlap) being decided that she has presented here.

I suppose you ought to know or have the opportunity to answer or not on the assumption that there wasn’t any wire tapping.

Jack J. Levine:

I’m sorry Your honor, I didn’t follow that.

Byron R. White:

Well I know, but if a witness for a Grand Jury refuses to answer on the assumption because the Government won’t say anything else on the assumption that there’s been illegal tapping, that’s one thing.

But if she refuses to answer knowing that there hasn’t been any taps, that’s another thing.

Jack J. Levine:

Yes sir.

Warren E. Burger:

Well I just understood you to say that if that had happened, she’d either be in jail with the keys to the jail in her pocket or she would just have testified, is that –?

Jack J. Levine:

Yes sir, and that’s what’s happening every [Voice Overlap].

William J. Brennan, Jr.:

Well, she’s been adjudged in contempt.

Jack J. Levine:

Well yes sir and [Voice Overlap].

William J. Brennan, Jr.:

So what we’d have to do would be vacate the adjudication in contempt and everything else that’s happened and go back and have the Government file its affidavit and deny that there was ever any tap or any interception of any oral communication of hers and that then puts her in the position where she can go back before the Grand Jury and testify or not, is that it?

Jack J. Levine:

Yes sir and that’s what’s happened in the Mark’s Case in the First Circuit and then in the other cases that have come up.

In other words, the Government took the position that she doesn’t have a right to know either way.

And she said that she did and that’s how the case came up on appeal.

Now, since then, the Government has taken a different position in a number of cases and have filed wire tap disclaimers.

They’ve done it in the Third Circuit, the First Circuit, the Sixth Circuit I believe or the Seventh Circuit and indeed, they’ve done it in the Ninth Circuit in the Russo case —

William J. Brennan, Jr.:

Well I have the impression and I think I’m right that this Court has accepted disclaimers of wire tapping made by the Solicitor General and acted on it without more?

Jack J. Levine:

You mean with that [Voice Overlap].

William J. Brennan, Jr.:

Back to the 5315

Jack J. Levine:

Well she — I’m not sure I’m not sure I follow this, but I — what I’m trying to say is that if in fact there is a remand, it has to be for the purpose I would say of the Government filing its affidavit, having her brought before the court and say, “Okay, the issue is settled now.

Now, will you or will you not testify?”

William J. Brennan, Jr.:

That’s what I’m suggesting.

Jack J. Levine:

Yes sir.

William J. Brennan, Jr.:

And we vacate the precedent outstanding adjudication of contempt to give her that opportunity.

Jack J. Levine:

Yes sir.

Byron R. White:

(Inaudible)

Jack J. Levine:

No, I don’t see how you — it seems to me that — well, quite frankly, I hadn’t — I actually hadn’t thought about this, to be perfectly honest with you.

The case is going to be decided.

If in fact it’s decided adversely to us, that’s it.

If it’s decided favorably to us, then there’ll be a remand anyway for the same purpose that you just suggested that the Government should put the affidavit.

Warren E. Burger:

But if we decided, we’re deciding something of a hypothetical case, are we not?

Jack J. Levine:

Well not on the record before the Court.

Byron R. White:

Well, it is now.

The Solicitor General says there’s been no wire tap.

Jack J. Levine:

Well, first of all, the Solicitor General is not the person that (Voice Overlap)

Byron R. White:

But Mr. Justice Brennan has suggested to you that perhaps this Court in past cases have accepted here the Solicitor General’s representation that there hadn’t been any wire tap.

William J. Brennan, Jr.:

Even though nothing had been done in that time below?

Jack J. Levine:

Yes sir.

Well, if in fact that’s the case then I would say that there’s no difference, but there definitely has to be — dis-affirmation has to be in the record.

Potter Stewart:

Well your point is I suppose in the previous case we’re going to have to decide these issues and if we accept the Government’s argument in the previous case, then it doesn’t make any difference of whether or not there’s was or there was a wire tap.

Jack J. Levine:

Yes sir.

Potter Stewart:

I think then the Government is right and then your client is going to be held in contempt even on the assumption contrary to the fact that it now presently appears that there was illegal wire tapping.

Jack J. Levine:

Yes sir, the issue [Voice Overlap].

Potter Stewart:

The issue is going to be decided in the previous case, that your point, isn’t it?

Jack J. Levine:

Well, regardless of what happens one way or another, the issue is going to be decided.

Potter Stewart:

Right.

Jack J. Levine:

It’s decided adversely to us —

William J. Brennan, Jr.:

Why?

I just don’t understand that.

Why should your client be in contempt no matter how we decide the other case?

Jack J. Levine:

That’s what I was (Voice Overlap)

William J. Brennan, Jr.:

If the affirmation of denial was made below and she goes and willing to appear and testify before the Grand Jury, and because we decide the other case in the Government’s favor (Voice Overlap)

Jack J. Levine:

I’m sorry, I thought what I was saying before was that she can’t be held if in fact there is a denial in the record, she can’t be held in contempt until when confirmed with that she says, “Right, okay.”[Voice Overlap].

William J. Brennan, Jr.:

That’s right.

Because nevertheless she won’t appear to testify.

Jack J. Levine:

That’s right.

Yes sir.

I’m sorry and when I say that’s what happened in the Mark’s case, that’s exactly what happened in the Mark’s case.

Warren E. Burger:

Your time is up Mr. Levine.

Jack J. Levine:

Thank you sir.

Warren E. Burger:

Mr. Friedman, we’ll go through and you have four minutes left.

Daniel M. Friedman:

I’d just like to say that Mr. Justice Brennan, I think it’s important to look at the page 46 of the Government’s petition.

William J. Brennan, Jr.:

Which case now?

Daniel M. Friedman:

This is in this case, in the Egan Case.

Warren E. Burger:

46?

Daniel M. Friedman:

46 of the Government’s petition which contains the opinions of the Court of Appeals in this case, the very last sentence of the opinion says, “The judgment of contempt will be vacated and the case remanded for a hearing to determine whether the questions propounded to Sister Egan resulted from illegal electronic surveillance directed at her.”

So that (Voice Overlap)

William J. Brennan, Jr.:

Well it’s already been vacated, the contempt?

Daniel M. Friedman:

Yes, the contempt has been vacated because the Court of Appeals has reversed the District Court’s decision in determination of contempt and has said that Sister Egan was entitled to litigate this issue in this context.

Byron R. White:

Well, the Court of Appeals decided the question on the merit?

Daniel M. Friedman:

That’s correct.

Byron R. White:

Without knowing whether there was electronic surveillance or not?

Daniel M. Friedman:

That is correct.

And of course our position is as I’ve indicated is that we do not think in this situation she is entitled basically under the statute to litigate this issue at all.

Byron R. White:

Right.

Warren E. Burger:

Thank you, Gentleman.

The case is submitted.