DESIST v. UNITED STATES

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Argument of Abraham Glasser

Chief Justice Earl Warren: Number 12, Samuel Desist et al., petitioners, versus United States.

Mr. Glasser.

Mr. Abraham Glasser: Your Honor, this is my colleague, Mr. Markowitz.

Chief Justice Earl Warren: Yes.

Mr. Abraham Glasser: It's strong.

Chief Justice Earl Warren: It's strong.

Mr. Abraham Glasser: Mr. Chief Justice and associate justices and my -- Mr. Beytagh.

This is-- the grant of certiorari here is to review a judgment of the Second Circuit which affirmed a narcotics conviction, a rather notable narcotics conviction, as I think Your Honors know.

It involved the largest shipment of pure heroin ever captured in this country, familiarly known as the Trench Deep Freeze case.

The narcotics were brought over by whoever brought them, secreted in a hollowed out deep freeze structure.

Now, our men, our petitioners all have very heavy jail sentences.

The shortest sentence is 10 years, that's Sutera.

Dioguardi has 15 years, Desist has 18 years, and the two French defendants, Nebbia and LeFranc, have 20 years and a $5,000-fine.

I'm purposely emphasizing the sentences and another factor, which I will mention in a moment, at the outset.

I'm emphasizing at the outset for reasons that I will mention momentarily.

These men have now served about, let's see, Nebbia and LeFranc have been sitting in jail since about the end of December of 1965, the year that this situation was broken open.

So they're in now nearly three years, and the other-- the others, that is Dioguardi, Sutera, and Desist, were out on bale for awhile and then they've been in for a little over two years.

The Government has the heroin.

This heroin was not marketed.

The Government has the batch.

And, the Government now has, paid out by these men, a certain amount of jail service.

I'm mentioning that because we all know that, in the briefing over the question of retroactivity of Katz in this case, the government has expressed concern that there will be something alarming to the sense of law enforcement in giving this type of defendant the benefit of a case like the Katz case on retroactivity.

So, I'm saying that it isn't, all together, a dead loss in realistic down the earth day to day law enforcement policy terms.

The government has the heroin and the men have served-- well, they've all already served a good bit of jail time.

Justice Abe Fortas: Well, is none of this stuff marketed?

Mr. Abraham Glasser: I beg your pardon?

Justice Abe Fortas: Was none of this heroin marketed at all?

Mr. Abraham Glasser: No.

The entire-- in fact, Your Honor, the deep freeze-- this is according to the government's theory of the case, the deep freeze was received in the hands of a fellow name Condor, an army warrant officer in Georgia.

He, according to the government's theory, was told one night to unpack it and he had it unpacked and, in suitcases, and felt very gingerly about it and want to be rid of it, and he was rid of it pretty quickly -- the police came and got it.

None of the defendants, who are the petitioners here, have been-- are shown to have had any contact with this heroin.

Condor, of course, says that Desist supplied him with the deep freeze and then hollowed it out.

He-- well, there-- isn't even definite if Desist hollowed out the deep freeze, but except for that context of Desist with the alleged preparation of the structure there is no-- this isn't even a possession case, incidentally, not to that matters at this stage, I know, but it may be of interest.

Chief Justice Earl Warren: But when you say the-- that none of these petitioners had any contact with this heroin, I suppose you mean physical contact.

Mr. Abraham Glasser: Physical contact with it.

Chief Justice Earl Warren: Not their contact in the arranging for it or any-- to come over anything at that time--

Mr. Abraham Glasser: I'd go further, Your Honor.

Chief Justice Earl Warren: I beg your pardon?

Mr. Abraham Glasser: I'd go further, although I didn't wish to interrupt Your Honor, I would go further.

They not only didn't have physical-- this is all under the proofs.

We're talking about what the proof show.

The proof show not only no contact, but the proofs don't even tie in these people with the heroin except through, well, the circumstantial evidence that Condor says Desist gave him money to bring the deep freeze over.

Condor claimed he did not know it was heroin.

So, there's no proof there.

There's no tie in of Desist with heroin there.

And --

Chief Justice Earl Warren: Well, now, you're arguing to us the sufficiency of the evidence, are you?

Mr. Abraham Glasser: Not really.

I'm really arguing the atmosphere of the case, in case you let these fellows go.

Chief Justice Earl Warren: Well, I'm not --

Mr. Abraham Glasser: That you shouldn't feel too badly about letting them go if you apply Katz.

That's my theme at this moment.

Chief Justice Earl Warren: Well, $9 million worth of -- $9 million for the heroin is quite a sizeful project, as you might --

Mr. Abraham Glasser: Of course.

Chief Justice Earl Warren: Realize, but what I was asking you was this, when you said that these defendants had no contact with the heroin, you meant by that I assume the physical contact and you didn't mean -- not mean that this was a Louisville versus Kentucky case that there was no evidence in the case --

Mr. Abraham Glasser: No, this is not a Louisville versus Kentucky case, no.

Chief Justice Earl Warren: Yes.

Mr. Abraham Glasser: I think if it had been that, you'd have a brief from me on it.

But, I think I briefed practically everything else in this case.

No, it's not a Louisville versus -- yes.

Chief Justice Earl Warren: Yes.

Mr. Abraham Glasser: Shall I continue?

Justice Potter Stewart: About this matter of interest--

Mr. Abraham Glasser: I beg your pardon?

Justice Potter Stewart: The Chief-- as a matter of interest, the Chief Justice said $9 million.

I read somewhere that the value -- estimated value of this stuff was $100 million.

Mr. Abraham Glasser: $100 million is -- yes, that figure, I've read also.

That depends I suppose on how they cut it up, how they --

Chief Justice Earl Warren: I just thought mixed up on my ciphers.

That's all.

Mr. Abraham Glasser: Shall I continue now, Your Honor?

Well, there are, of course, the other aspects of this case and the aspects-- that we all had the impression where the aspects cause the grant of certiorari, and that's the electronic monitoring.

We all have the impression that, by far, the forefront issue in this case is the electronic issue and the issue of retroactivity of Katz.

Now, I'd like to say something that might -- well, may -- I hope it won't startle anyone un-- in a discomfiting way.

It's startled me a little bit when I finally realized it which was, frankly, just a few days ago after I read the Court's Fuller versus Alaska decision and felt dismay at the sudden sinking of our chances in our case, but the dismay, as sometimes happens, provoked me to rethink the whole situation very hard.

And, I suddenly saw this, and I'd like to convey this to the Court.

We don't need, in this case, a ruling that Katz is retroactive.

All we need, and I believe we're entitled to it on correct law, what we need is a ruling that Katz declared preexisting law.

Katz didn't make new law.

I have read Katz, again, very carefully the last few days.

In fact, I've put it in another brief last Friday, which I -- which is called the joint supplemental reply brief which I trust Your Honors have received.

And, that brief is largely devoted to arguing that Katz did not make new law, but that Katz merely gave expression to preexisting Fourth Amendment law.

If that analysis is correct, this analysis I've just offered, if that's correct, there is no retroactivity problem here at all.

It becomes rather like the situation is Stovall where Mr. Justice Fortas, in his separate opinion in Stovall, noted that he would not have reached the -- he would not reach the retroactivity issue.

He would treat the issue as one of due process.

In other words, preexisting due process.

We're not making new law that requires a painful decision on retroactivity.

We're simply applying the law as it existed.

And, I will invite Your Honors to focus especially on a rereading of Katz.

When you undertake your own deliberation and study on the case, read Katz closely please to see whether I'm not right that it's not a retroactivity decision at all.

It's --

Justice Abe Fortas: I guess the position would be that --

Mr. Abraham Glasser: I beg your pardon?

Justice Abe Fortas: I suppose the position would be -- that you're arguing would be that Katz was always the law.

There are just some inconsistent decisions of this Court.

Mr. Abraham Glasser: I -- I see Your Honor smiling, and I'm smiling not only in neutrality, but because I have a very pleasant things to say.

I have excellent authority for the -- I almost set notions for the position that Katz was always the law.

Mr. Chief Justice, in the Yutangco argument, as reported in the Criminal Law Reporter a few weeks ago, the Solicitor General said that -- something about that what the men in Katz did, the agents did, was legal at the time they did it and Your Honor said, “Well, then, if that were so, wouldn't we have abided by precedent?”

I think it's one of those -- anyway, Your Honor was apparently suggesting to the Solicitor General there that Katz merely stated the -- what Katz says is what the law always was.

Now, there are other reasons why we don't -- we, the petitioners, consider that we do not stand or fall, our fate does not depend upon the question of retroactivity or prospectivity of Katz.

There is --there is a whole other half of this case.

We contend that what the government did, what the narcotic agents did, in the electronic eavesdropping which, by the way, was done at the Waldorf Astoria Hotel.

I don't think I have mentioned that yet.

At the Waldorf Astoria Hotel in December 1965, narcotic agents installed an electronic type of listening device in a room adjoining a room occupied by petitioner Nebbia.

Then, over the next couple of days, the agents heard various things which were testified to at the trial and which if believed, were damaging.

Now, the agents say that they put their bug in their own room rather than in Nebbia's room and that they didn't penetrate Nebbia's enclosure or close in anyway, that they laid the microphone, the listening device, at the bottom of the door of their own room where there was a small aperture.

Then, beyond that door was an air space of a few inches and then a door Nebbia's room, the typical double door arrangement that you get in some of the better class hotels.

The agents claim, in other words, a completely non-trespassory and non-physically intrusive type of monitoring.

Now, I -- this is only the second time I've ever argued before this Court, and the last time was more than 20 years ago.

I don't know the amenities.

Am I permitted to hand up for those or to the clerk?

Chief Justice Earl Warren: You may hand it to the clerk if you have something solid.

Mr. Abraham Glasser: There are some photos here, which are government exhibit, showing illici -- showing the way this was done.

Chief Justice Earl Warren: Yes, the marshal --

Mr. Abraham Glasser: One of those photos shows a towel draped over the -- over something.

What it's draped over, the testimony shows, is straightly over the microphone.

Chief Justice Earl Warren: Were these exhibits in Court?

Mr. Abraham Glasser: Yes.

I have something else that wasn't in Court which I hope Your Honor will look at, but that's a general publication.

I might mention that right now, as a matter of fact.

There was intense dispute at the trial and even more intense dispute at the appeal as to whether the agents had told the truth as to how they put in this listening device.

However, at the trial, at the pretrial motion to suppress, the district judge ruled that he believed the agents and that there was no trespass and no illegality of any kind of the monitoring.

Then, on the appeal, in restudying the whole thing for the appeal, we saw that -- we saw that there was more, that there was not just smoke but fire.

We felt that we were discerning suspicious items in the record that really require further scrutiny --

Justice Potter Stewart: Well, except, Mr. Glasser, haven't you left out the fact that, on the motion to suppress before Judge Palmieri, the judge himself went up to the Waldorf Astoria Hotel --

Mr. Abraham Glasser: I have left that out but --

Justice Byron R. White: And you reconstructed the --

Mr. Abraham Glasser: Yes.

Justice Byron R. White: They reinstalled the listening device and reconstructed the whole thing, and he saw it with his own eyes and he spent two or three days canvassing all of this on motion to suppress?

Mr. Abraham Glasser: That's correct, Your Honor.

I did believe that out and I'm sorry but, of course, we don't think that that matters.

We don't think that hurts our case, that Judge Palmieri did that because we think the agents didn't show Judge Palmieri what they had actually done the preceding December.

Justice Byron R. White: Well, we're hardly in the position to decide whether or not you're right or wrong about that.

That's been decided against you, hasn't it?

Mr. Abraham Glasser: Yes, it has, but we have briefed it here in a way that we think entitles us to have this Court consider it on review.

Now, I was saying that when we got to appeal time in this case, in the Court of Appeals, we went out and we hired -- for the first time, we hired an electronic consultant.

We hired the one that we, after inquiring, we thought was the best one in the country.

The government has disparaged this man's qualifications.

His name is Bernard Spindel and I have here, if the Court would wish to receive them, three issues of a life magazine article about a year ago -- about two years ago, featuring Spindel as the top number one electronic expert in the country.

The article is interesting anyway and I don't know whether the Court would wish to have it, but if they do, if the Court would wish to have this, I would like to hand these to the clerk also.

Chief Justice Earl Warren: Is that in the record?

Mr. Abraham Glasser: This is not in the record.

Chief Justice Earl Warren: Well, then we will hear from the Government on that before you pass it around.

Mr. Abraham Glasser: All right.

I'll give the government a copy.

Our point is, in offering something like this and in my point in arguing it, is that there's not much doubt in my mind that one of the reasons we didn't get more credence to our demonstrations of dubious truthfulness on the part of the agents was that our electronic expert was not credited as being an expert.

It seems to me there were just a bit of a -- well, I don't mean to use an impertinent term, a bit of stubbornness about conceding that a fellow with a flamboyant kind of style like that, a flamboyant placed in society could also be an authentic scientific expert, which we maintain he is.

Now, --

Chief Justice Earl Warren: Mr. Glasser, may I again ask you, are you arguing to us the credibility of those witnesses as against the finding of the courts below?

Mr. Abraham Glasser: I am arguing the credibility of the narcotic agent witnesses in the motion to suppress hearing.

I'm arguing that to this Court because we consider that the indications are overwhelming, that the agents could not have been telling the truth, and that in the Schipani -- what we call the Schipani review procedure, that there is always open the duty and the possibility of new appellant scrutiny where there has been trespassory eavesdropping.

If it hadn't been for Schipani and Black and that whole course of decisions, and the Department of Justice own very gracious program which was started during Mr. Justice Marshall's time.

Oh, I see he's not on the bench.

Well, if it hadn't been for Schipani, we would have very faint hope of interesting this Court in this contention addressed to the credibility of the narcotic agents.

But, with Schipani in the picture, we think it would be perfectly normal and right and necessary for the Court to hear us in that argument and to determine whether we're -- whether our argument is -- has -- carries any persuasion.

Chief Justice Earl Warren: On evidence, that is not in the record?

Mr. Abraham Glasser: I beg your pardon?

Chief Justice Earl Warren: On evidence, he wants to decide on evidence that is not in the record?

Mr. Abraham Glasser: We would contend -- we would be content to -- well, here, we made motions and filed affidavits in the Circuit Court of Appeal -- in the Court of Appeals during dependency of the appeal asking them to pick up the Schipani task.

Schipani have come down in December 1966.

We were arguing before the Court of Appeals during the months of January, February, March.

We were bombarding them with motions and affidavits asking them to entertain a Schipani review.

And --

Justice William J. Brennan: So it wasn't Schipani --

Mr. Abraham Glasser: Asking -- I beg your pardon?

Justice William J. Brennan: Wasn't Schipani a case where the government came forward and said, yes, we were frankly --

Mr. Abraham Glasser: I'm sorry, did the government --

Justice William J. Brennan: Illegal bugging.

Mr. Abraham Glasser: Did the government acknowledge illegal bugging?

Yes.

Justice William J. Brennan: And here, the finding of illegal bugging is against you, and that's where it went down to --

Mr. Abraham Glasser: No.

Justice William J. Brennan: Try the case?

Mr. Abraham Glasser: No, but I guess I have to really call a space -- spade then.

See, we think the narcotic agents must have deceived the Department of Justice.

We're sure the Department of Justice is not, in complicity, anything wrong here.

We're positive of that.

I'm not just saying that to be diplomatic.

We're convinced of that, but we do think that there has been -- we do think there has not been -- we think the presumption of official regularity is not justified here on a showing that we've made.

Now, about --

Justice John M. Harlan: On the findings of fact here, assuming that -- on the findings of fact, assuming that we accept those, there's nothing here on your bugging claim, is there?

Mr. Abraham Glasser: Nothing to our claim that the --

Justice John M. Harlan: Now your bugging claim, that this was a trespassory bugging.

Mr. Abraham Glasser: If you accept the findings of Judge Palmieri, there is nothing to our bugging claim.

Justice John M. Harlan: Yes.

Mr. Abraham Glasser: Of course.

We are asking that the Court apply the Schipani and general Fourth Amendment scrutiny powers that the Court brought into operation in those cases during the year -- during the second half of 1966, in which the Department of Justice has been cooperating -- in which the Department has been cooperating with the Court.

Now -- and I might, at this point, interject.

There's President Johnson's order of June 30, 1965.

Now, there have been references to such an order in papers filed by the Solicitor General's Office in this Court in a number of certiorari situations, references to the President's order as having called upon the entire federal establishment to review whether they had been engaging in any illegal electronic activity.

That's about as far as one can determine from the government's descriptions of the President's order, what that order contained.

Now, we've been trying for a long time to get the contents of that order.

The Government has still not told us the contents of that order.

We think that if there was a presidential order which was disobeyed by narcotic agents, that they are acting ultra vires and that if there couldn't be a more classic instance of the violation of due process of law, then to be under process which has no law in it whatever, that is, a usurpational subordinate of employee of the federal government of the executive branch.

Invading privacy is violating not only the Fourth Amendment, but due process of law.

We think the President's order should be -- we hope that this Court will see fit to ask the Solicitor General to disclose the contents of the President's order.

Now, there again, off the record, I have a copy of what purports to be the -- I've had it since last December.

I want to be frank with the Court.

I don't know whether I'm allowed to have it.

Desist sent it to me from jail.

I don't know where he got it.

It reads to me very, very con -- it has perfect versatility to it.

It -- It's authentic.

I've been -- I was -- I know government writing.

I've been in the executive branch as a writer.

It -- It's written.

It's not -- it sounds real.

Now, if it -- if the actual order is like this one that I've got, there will be another brief filed -- still another brief filed in this case by us.

Justice William J. Brennan: I tell you, Mr. Glasser.

I don't think I quite understand this.

What is this order you're talking about, an authorization?

Mr. Abraham Glasser: President Johnson is said by the Solicitor General in the Black memorandum, in the Schipani memorandum, and in one other memorandum that were filed in memorandum which was filed in this Court in which the Solicitor General was working out his own new approach in connection with electronic monitoring.

He said, there's a presidential order of June 30, 1965 addressed to the entire federal establishment calling us all to different standards of conduct in connection with electronic monitoring.

And, there are a few other clues.

One clue is that the President really only wanted it done for -- where national security was attacked.

He only wanted it done with advanced permission and approval of each instance from the Attorney General.

He didn't want any wire tapping apparently at all.

Justice William J. Brennan: But what's the significance of all this with his conviction?

Mr. Abraham Glasser: The significance of this is that the President's order is June 30, 1965, the bugging in our case is December 1965.

The significance would be that the bugging disobeyed the President's order.

Justice William J. Brennan: And if it did?

Mr. Abraham Glasser: If it did, it is usurpational.

We contend then --

Justice William J. Brennan: Yes, what do you mean usurpational?

Mr. Abraham Glasser: We were practically tender a federalist paper on that point.

The point we deem to be so fundamental that we would -- we wish we could write.

Justice William J. Brennan: Wait, you're ahead of me.

What do you mean, usurpational of what?

Mr. Abraham Glasser: Executive power.

The Executive power of the United States is vested in a President.

The President has an executive power, not his subordinates have it, except as far as he delegates it to them.

When they exercise the power to see that the laws are faithfully executed, the power to enforce the laws, in the President's name and it is an enforcement action which the President has strictly forbidden them to take, aren't they usurpers?

I don't mean to call names but, I mean, we have to -- I'm using classic terms here.

Justice William J. Brennan: Perhaps I understand it now.

This is an argument independent of your Fourth Amendment argument.

Mr. Abraham Glasser: Oh, yes, entirely so, and it has been pretty heavily briefed.

I -- sorry, I keep talking about the people I -- I'm aware of my -- I would like to stop now and save my remaining five minutes for rebuttal, if I may.

Chief Justice Earl Warren: Okay.

Mr. Beytagh.

Argument of Francis X. Beytagh, Jr.

Mr. Francis X. Beytagh, Jr.: Mr. Chief Justice and may it please the Court.

I am a bit surprised to learn that petitioners don't feel that retroactivity of Katz is the question involved here.

Now, we have thought, in our brief and in petitioner's brief here before, this question has been briefed extensively and we have thought that this was the central issue involved in the case.

I still think it is, as I understand it, petitioner's contention is that Katz itself somehow decided this question.

Now, I don't quite know whether that's what he means or whether he's simply saying that the law always was that way and, in light of some suggestions made from this end of the bench, it seems to me that's fairly close to the accepted common law theory which the Court in Linkletter and subsequent decisions found it was not bound to follow.

Well, it seems to me, that doesn't advance the inquiry here very far because the question is whether this is one of those situations in which the approach taken in Linkletter and in Stovall and Johnson and Tehan and several other cases per curiam should be followed, that is, that a decision changing a constitutional rule of criminal procedure should not, for a variety of considerations, be given retroactive effect to prior cases.

I should mention that --

Justice Potter Stewart: There's another way of looking at this case, isn't there, Mr. -- is there or am I mistaken, in the cases like Linkletter, Mapp, that whole area, the police knew what they were doing was a constitutional violation whether under Wolf against Colorado --

Mr. Francis X. Beytagh, Jr.: Yes, sir.

Justice Potter Stewart: They knew it was wrong.

They knew it violated the Constitution.

The question was whether the sanction of evidentiary exclusion should be applied.

Here, it's at least arguable, is it not, that policemen who relied in good faith upon their understand of the state of the law were not guilty of a constitutional violation at all because, after all, the constitution makes illegal and illegitimate only unreasonable searches and seizures.

And, policemen who, in good faith, are relying on Goldman against the United States and their understanding of Silverman against the United States in their conduct of electronic surveillance, that, arguably at least, is not and unreasonable search or seizure, isn't that correct?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Justice Potter Stewart: So, that --

Mr. Francis X. Beytagh, Jr.: And, I think --

Justice Potter Stewart: And, that's an argument available to you in this case.

It was not available to the government in cases like Linkletter, perhaps it was available in Tehan --

Mr. Francis X. Beytagh, Jr.: The Court has made --

Justice Potter Stewart: It certainly was not available in Linkletter, isn't that correct?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honors, as I'm sure you're aware and this is what you really refer to, the Court has noted this fact in subsequent cases holding decisions not to be retroactive that, in the Linkletter situation, that the law enforcement officials, in light of Wolf, knew what they were doing.

The state officials were wrong, and they want it and did it and the Court, nonetheless, found that it was --

Justice Potter Stewart: I suggest it really analyzed, as I've tried to suggest in my question, it isn't a matter of retroactivity.

It's a matter of whether or not there was a constitutional violation in this case.

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Justice Potter Stewart: Now, if the policemen did it now, tomorrow they would do what they did in the light of a Katz decision and their conduct -- the reasonableness of their conduct would have to constitutionally be measured against the standard of the Katz decision.

But, this surveillance took place long before Katz was decided and, since the constitution talks about unreasonable searches and seizures, it's arguable that we're talking here about retroactivity at all.

We're talking about whether or not there was a constitutional violation at all.

Isn't that correct or am I quite wrong?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor, but the reason we haven't pressed that argument at length is that, it seemed to us, the Katz opinion itself suggested that it was not sufficient that the agent's conduct there was reasonable and, therefore, we have not felt that we could press that argument here.

Justice Potter Stewart: Well, as Stovall suggested, this Court is constitutionally charged with the duty of deciding cases, but the policemen act in light of the state of the law.

Mr. Francis X. Beytagh, Jr.: I understand.

Yes, Your Honor.

Justice John M. Harlan: I thought you conceded in your brief, if Linkletter applied this case, that would be reversed.

Mr. Francis X. Beytagh, Jr.: That's our understanding of the situation.

This is not consistent --

Justice John M. Harlan: But, that's what you said in your brief?

Mr. Francis X. Beytagh, Jr.: Yes.

This is not consistent with the approach that --

Justice Potter Stewart: Now, I thought you simply said if Katz were retroactive.

Mr. Francis X. Beytagh, Jr.: If Katz were held retroactive.

Justice Potter Stewart: But, you're saying something different.

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Justice Potter Stewart: And then perhaps at least arguably.

Justice John M. Harlan: I'd like to hear you distinguish Linkletter.

Mr. Francis X. Beytagh, Jr.: I'm not sure in what respect it would be in my interest to distinct --

Justice John M. Harlan: Well, I'm not sure either.

Mr. Francis X. Beytagh, Jr.: Distinguish Linkletter.

The only point of distinction that is suggested by petitioners is that in Linkletter the Court held Mapp to be, what he says, partially retroactive, that is, the Court held that the Mapp decision would be applicable to cases on direct review at the time that Mapp was decided but not on collateral.

Now, as the Court itself pointed out in the Johnson opinion and again in the Stovall opinion, those decisions were made “without discussion.”

They were made in per curiam decisions without consideration or reflection or an opportunity to evaluate and weigh these arguments.

So, we don't get really very much out of that point.

It seems to me that the Court has moved beyond that in the evolution and development of this doctrine of non-retroactivity in appropriate circumstances.

Now, beyond that, I can't see any point of distinction with Linkletter and, it seems to me, that point is not a --

Justice John M. Harlan: But the petition for certiorari in this case was pending at the time Katz was decided.

Mr. Francis X. Beytagh, Jr.: That's correct.

Yes, Your Honor.

Justice Potter Stewart: Do you think the -- what barring, if any, on the issues in this case does the recent decision of the Court in the Alaska case have, or was it Fuller against Alaska?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

It seems to me, that it has a pretty direct barring.

I think that we have, in our briefs, developed a sound argument.

If you follow the analysis that we do and not the alternative analysis that you suggested, for holding the Katz decision not to be retroactive.

It seems to us that the decision in Fuller which held, as Your Honors know, Lee versus Florida non-retroactive is awfully close the situation that we have here.

I have not had an opportunity to study this joint supplemental reply brief that was filed over the weekend but, as I understand it from a quick reading, there are some discussion there that, while they do admit that -- petitioners do admit that the Fuller decision may cause them some difficulties, the suggestion is that, because a statute was involved and not the Fourth Amendment and because a telegram and not a telephone, that somehow this makes it different.

It seems to me that what the Court said in Fuller was that all of the considerations that have been developed in the previous cases are applicable in this situation.

The purpose, it said, is to enforce a federal law, purpose is delineated in the Linkletter opinion of the Fourth Amendment exclusionary rule, of course Katz is a Fourth Amendment case and developed some exclusionary rule itself, is to deter police from acting in an unconstitutional matter.

And, it's clear that if that's the purpose, that purpose can't be served by retroactively invalidating convictions that have been based upon evidence obtained which, under the new rule, would have been inadmissible.

So, I think that the Fuller case is quite pertinent.

I think that all the analysis applied there is applicable here and, it seems to me, that confirms the approach that we have suggested to be taken to the Retroactivity Clause.

Justice Potter Stewart: Except, again, if you concede any validity in the theory suggested by my question, you have a fortiori case from Fuller because, in Fuller, the police authorities knew what they were doing was violative of an explicit federal statute, isn't that correct?

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice Potter Stewart: Whereas, here, my hypothesis the law enforcement agent, the narcotic agents, where conduct was measured by their knowledge of the existing case law and they did not, therefore, by -- we could assume, knowingly violate the law by contrast with Fuller against Alaska.

Is that fair to say or not, am I wrong?

Mr. Francis X. Beytagh, Jr.: Well, I like you saying that the --

Justice Potter Stewart: Assuming that you're not going to tell me I'm wrong because what I'm suggesting is in your favor.

Mr. Francis X. Beytagh, Jr.: That the problem with it for me, quite honestly, is that Schwartz was on the books and it maybe said that they also could be charge with having knowledge of that.

So, I'm not sure that --

Justice Potter Stewart: What?

Mr. Francis X. Beytagh, Jr.: This Schwartz case was also on the books, so holding the statute --

Justice Potter Stewart: I know, but I'm not talking about that.

Mr. Francis X. Beytagh, Jr.: No, I understand.

Justice Potter Stewart: We're talking about the wrongdoing by the agents --

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Justice Potter Stewart: And the sanction to prevent it.

And, in the Fuller case, we may assume that there was knowing wrongdoing, knowing law violation of a federal statute.

In this case, by contrast, I suppose we have to assume that the agents were acting in accord with their knowledge of the existing law which was expressed in Goldman, in Silverman, and on Lee and so on.

Mr. Francis X. Beytagh, Jr.: I think, adding to that point, as we pointed out in our brief, although petitioners appear to dispute, I don't know how they have the information.

I frankly don't have the information, but it's not all together clear that if the agents had known what the law was going to be, that they would not have been able here to get a warrant.

They followed, as far as we can tell, in the concurrent findings of both Courts below.

It seems to me, it refute the suggestion made that this Court ought to somehow seek to overturn these findings in this evidence.

The Courts below both found that the installation was made without physical intrusion into a constitutionally protected area, under the Goldman-Silverman distinction.

Now, it seems to us that the reason the agents want about it -- doing that way was because of the very reason that they were trying to comply with the law as they understood it.

Now, whether they could've gotten a warrant or not had they known that Katz was going to be decided and required a warrant, I don't know.

As we pointed out in our brief, there's a case called Pardo-Bolland versus United States.

It was decided by the Second Circuit and in which certiorari was denied by this Court just prior to be installation at the Waldorf in this case.

That case involved a virtually identical installation, the microphone adjacent to an opening in a door between hotel rooms but not at all penetrating into or under the door.

It seems to us that, as I indicated earlier, that all of the considerations that the Court has developed applicable in deciding whether a case should be retroactively applied and none are pertinent here.

I discussed purpose.

We discussed it at -- briefly the question of reliance.

It seems to me, it's quite clear that the agents here did rely and that other agents have relied on the Goldman-Silverman distinction.

Katz, now, requires that they get a warrant.

If we accept the findings that the installation here was not trespassory and, it seems to me, that it was lawful under the law that existed, and because they relied upon that law and because other agents in similar installations have obviously relied on it, there's every reason to maintain that that factor argues in favor of non-retroactivity.

Justice John M. Harlan: Could I ask you a question Mr. Beytagh?

If your view as to Stovall that prospectivity is accepted, does that leave any vitality to Linkletter and Johnson?

Mr. Francis X. Beytagh, Jr.: I'm not quite sure that I understand the question.

Justice John M. Harlan: As I understand it, your -- it's your argument in here the Stovall rule which says that if a rule is made -- a new rule is made, it's to be applied only prospectively, that is, to cases arising after --

Mr. Francis X. Beytagh, Jr.: To conduct -- to con -- yes, sir.

Justice John M. Harlan: After the decision, namely that the man to whom it's applied, he's had a lucky constitutional chance.

Mr. Francis X. Beytagh, Jr.: Yes.

Justice John M. Harlan: What room does that leave for Linkletter-type retroactivity when he can cut off dates or Johnson-type retroactivity type of trial beginning in the Boardrooms?

Mr. Francis X. Beytagh, Jr.: I think it leaves very little room, Your Honor, as we --

Justice John M. Harlan: That's what I understood you to say.

In other words, as I understood, the thrust of your retroactivity argument merely was that in the developing of this new doctrine and, of course, everybody would recognized it, beginning with Linkletter and following through to Johnson and to Stovall that, really what was important to come out if this thing in its last expression was that new rules are to be prospective only in the sense of applying only to cases arising out before it was announced.

Am I wrong about that?

Mr. Francis X. Beytagh, Jr.: Well, I just question what their case is -- is precisely our -- our view of Stovall is that, at the time of the conduct as compared with the time of the decision, any conduct occurring thereafter.

Now, in the DeStefano case which involved non-retroactivity of jury trial, the Court necessarily related that to trials commenced, but the only way that you can apply it --

Justice William J. Brennan: Well, what you're really saying, Mr. Beytagh, as I understand it, is that on your submission the Katz rule would apply only to actual buggings after the date that Katz was decided?

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice William J. Brennan: And, for that reason, I gather you'd come out to affirm here?

Mr. Francis X. Beytagh, Jr.: That's correct.

Justice William J. Brennan: You say that these petitioners are not entitled to the benefit of the Katz.

Only Katz was entitled.

It would soon effect what we said in Stovall --

Mr. Francis X. Beytagh, Jr.: In Stovall.

Justice William J. Brennan: About Gilbert and Williams, wasn't it?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor.

Katz and, of course, any people bugged subsequent to Katz to which the rule applies.

Justice William J. Brennan: Well, I say -- but it' -- it says bugging -- but Katz got the benefit of the rule which was laid down for the first time, I gather, in Huston.

I know that it's not Mr. Glasser's position --

Mr. Francis X. Beytagh, Jr.: Yes.

Justice William J. Brennan: But the government's position.

Mr. Francis X. Beytagh, Jr.: Yes.

Justice William J. Brennan: That Katz laid down a new rule, and you say that new rule should apply only on the buggings after the date that Katz was decided?

Mr. Francis X. Beytagh, Jr.: Yes, Your Honor, and that's entirely consistent with Stovall and reflective of what Stovall suggested about the reasons --

Justice William J. Brennan: Yes.

Justice John M. Harlan: Well, that's exactly how I understood your position, but my question to you is, doesn't that overrule Linkletter?

This is a Fourth Amendment case.

Mr. Francis X. Beytagh, Jr.: I'm not sure that it overrules Linkletter if --

Justice John M. Harlan: By vitality, do you think?

Mr. Francis X. Beytagh, Jr.: Well, in Link --

Justice John M. Harlan: Maybe it shouldn't have any more vitality, but I don't see how you can escape conclusions as far as Fourth Amendment cases are concerned.

If your view in this case is that Linkletter is challenged, well, I don't know if vitality has to do with this.

Mr. Francis X. Beytagh, Jr.: Well, I take it you mean vitality in respect of making a distinction between -- yes.

Justice John M. Harlan: At all?

Mr. Francis X. Beytagh, Jr.: Well, I think that that's right.

I think it still has vitality in respect of deciding that, as a general matter, Fourth Amendment decisions are not necessarily applicable retroactively.

Justice William J. Brennan: I see, but I suppose maybe the answer is that Linkletter and Johnson both, because I should think this would apply not only to the Fourth Amendment but the Fifth as well, wouldn't it?

Mr. Francis X. Beytagh, Jr.: I think so.

Justice William J. Brennan: And, to the extent that those cases gave the benefit of the new rules to litigants whose cases were on direct review as a practical matter, there aren't any more cases on --

Mr. Francis X. Beytagh, Jr.: I think as a practical matter --

Justice William J. Brennan: Do they?

Mr. Francis X. Beytagh, Jr.: It's doubtful that there are any.

Linkletter was the now --

Justice William J. Brennan: So that, really, here is, shall we adopt the same rule that we adopted for Linkletter or Johnson or shall we rather, this being a new rule, Katz on your submission being another new rule, should we adopt the test that we laid down in Stovall, is that right?

Mr. Francis X. Beytagh, Jr.: That's correct, although Johnson is much closer to Stovall than -- Tehan, the second case in Linkletter, did the same thing.

Justice Byron R. White: Yes.

Mr. Francis X. Beytagh, Jr.: Johnson moved beyond that --

Justice Byron R. White: That's right.

Mr. Francis X. Beytagh, Jr.: And made that commencement of the date -- the commencement of trial in which the confession is introduced applicable, and then Stovall focused upon the conduct, as Justice Harlan has pointed out.

Justice Byron R. White: This is a Fifth Amendment case, too, isn't it?

Mr. Francis X. Beytagh, Jr.: I don't think it's --

Justice Byron R. White: Well, his words, the man's own words that were picked up on above.

Mr. Francis X. Beytagh, Jr.: That's correct, but I see -- it seems to me, there's no compulsion involved here.

It's been suggested that somehow this is an involuntary confession.

We don't quite understand that.

I don't know that he was compelled to do anything.

I would like to turn just for a moment to the -- his repeated references to the President's directive of June 13, 1965.

Petitioners have referred to this repeatedly.

The only reason that it has not been made public is that it was specifically indicated by the White House that it should be an internal government matter and kept confidential.

All of us who have worked with these series of cases, Schipani and Black and whatever in this case, and the Attorney General in promulgating the directives that he is promulgated are completely familiar with what the directive says and what it requires.

In the main, it discusses wire tapping.

It discusses electronic surveillance only in a short and passing way, and simply directs that the Attorney General and the other agencies be ensured that the federal government and all of its agencies are acting in compliance with the existing law.

Now, we've acted consistently on that basis.

We have informed the Court in any situations involving trespassory bugging and, it seems to us, that the whole things has much to do about nothing and, it seems to me, inconceivable that the Attorney General and the Solicitor General, the Department of Justice, indeed the whole federal law enforcement establishment would've acted all these time inconsistent and in conflict with the presidential directive.

It's simply not so, and I don't know what else really can be said about it.

I would like to turn to several of the arguments made by petitioner that are really subsidiary in nature.

One of them is, he views it as a fairly important argument, he says that even if you hold Katz to be retroact -- non-retroactive so that the Katz does not apply to his case, the bugging here was in violation of existing law.

But, we don't quite understand that.

He seeks to get something out of the Osborne case.

The Osborne case, in the first place, was decided after the bugging occurred here but, more importantly, in Osborne, all that -- as we understand the Court to have done was to say that it was unnecessary to wrestle with the question of whether Lopez was still good law because in the Osborne situation there was judicial sanction for the recording which is, as Your Honors recall, was what was involved there of a conversation engaged in by the defendant and another person.

So, it seems to me that Osborne doesn't advance the inquiry anyway.

He suggested somehow Silverman decided all of these.

Well, in Silverman, the Court specifically refused to reconsider the question of whether Goldman and Olmstead were still good law and found it unnecessary to do so because it found a physical intrusion there and the Court, of course, has, as Your Honors know, concluded that it would not extend to Goldman even by a fraction of an inch.

But, it seems to us that it's quite clear that the Court was still talking in terms of his trespass distinction in Silverman.

Now, further, it seems to me, indication that the law that existed prior to Katz was as we say it was.

All of the Courts -- lower Courts understood it to be this way.

We've cited a number of Court of Appeals decisions would seek to apply this distinction.

We cited them “e.g.” because there are many more.

And, in these, the Court denied certiorari.

All these, occurring during the time prior to Katz, but in the Berger case itself in which the Court decided that New York's dropping statute was not sufficiently precise and definite to be upheld constitutionally.

The Court there said in its opinion, repeatedly referred to trespassory intrusions, and that it could not allow a statute that was that broad and that sweeping and that ill-defined to be a basis for sanctioning trespassory intrusions into constitutionally protected areas.

Now, that was written six months before Katz and it seems to us that it reflected the Court's view and notion of existing law at that time, and I can understand why the Court would say that in Berger if that was in its understanding of the law.

So, it seems to me that petitioners are off-base when they suggest that the activity engaged in here was somehow unlawful and that preexisting law, back to some point in time that I'm not clear about, already had presaged the Katz's decision.

There are a variety of subsidiary issues that petitioners have raised in the main.

I should like to leave them to our discussion in the brief, but I would like to make passing mention of some of them because it seems to us, in light of the Court's granting certiorari without limit, we have an obligation to respond to them.

Petitioner suggests that the remand hearing here was inadequate.

As the Court will recall, after the Schipani procedure which the government here did follow, contrary to petitioner's intonations, there was discovered several other instances of electronic activity.

One, related to one -- only one of the petitioners had occurred in Miami some-four years before the bugging here and it -- he was not the subject of the surveillance but he was overheard in a Miami restaurant.

The conspiracy here was not formed until several months before the heroin was discovered and petitioners were arrested.

This conversation had absolutely nothing to do with the matters involved here and was wholly irrelevant.

The only other instance was in Columbus, Georgia when they were following these people around because they were trying to make this transfer.

There was an attempt to put a radio transmitter in a rented car.

The thing didn't work and they heard absolutely nothing.

The remand hearing was limited to those two issues.

However, the judge did allow petitioners to put on several witnesses.

Those witnesses testified in various ways that some kind of bad things were happening down there in Columbus, but when they were cross-examined they backed off and, finally, the Court determined that they simply weren't credible.

Other questions that he raises, he says that as to t -- at least two of the petitioners, although he challenges the sufficiency of the evidence generally, he says as particularly as to two, Mr. Dioguardi and Mr. Sutera, the evidence was wholly inadequate.

Well, it seems to us, again, this is a matter for lower Courts to resolve.

The findings of fact here, concurred in by both Courts, are that the evidence was adequate, that these people were involved in the conspiracy.

They engaged in an extensive conversation in a restaurant New York that was overheard, not electronically, overheard by agents sitting at a bar in which the clear intendment is that they were to either receive the narcotics directly or to be the agents for those people that were receiving the narcotics.

It seems to us that that's a matter for the Court and the jury to resolve, and they resolved it against petitioner, but he continues to assert that it's a question that ought to be resolved up here.

There's a question raised as to the adequacy of how the tape was translated.

I'm running out of time and I'll simply mention these questions in passing and respectfully request the Court to refer to our brief.

It seems to us that, there, the Court gave petitioners more than enough opportunity to ensure that an adequate translation was made and there was no need to have, as they have suggested now, a simultaneous translator that somehow was listening to it and reading it to the jury.

Justice Abe Fortas: Mr. Beytagh, would this --

Mr. Francis X. Beytagh, Jr.: The tapes were in French, that's what it is.

Justice Abe Fortas: Mr. Beytagh, would this be affected and this case be materially affected by our decision in Alderman and Alderisio?

Those cases were used to be called Kolod?

Mr. Francis X. Beytagh, Jr.: No, Your Honor, I don't think so.

Justice Abe Fortas: I mean, I'm not talking about the non-Waldorf Astoria bugging.

Mr. Francis X. Beytagh, Jr.: No, I don't think so.

Justice Abe Fortas: With respect to that.

Mr. Francis X. Beytagh, Jr.: As we pointed out in our brief, all of the information they were -- there were some logs involved here.

The logs were turned over to the judge.

The judge looked at at all of them.

The government suggested that only parts of the logs related to Mr. Dioguardi at all, any of his conversations, and government exhibit, I think it is 103, was turned over to petitioners.

The Court made a specific finding that that contained all and the only overhearing of Mr. Dioguardi that occurred during this time.

That was given to petitioners and it was found to be all irrelevant.

And, there is a specific finding of fact by the district judge to this effect.

Justice Abe Fortas: Does petitioner's counsel challenge what you just said?

Mr. Francis X. Beytagh, Jr.: I don't think so.

They haven't up to now, Your Honor.

Justice Byron R. White: Do you mean every record or recording that involved this one, petitioner's own voice was turned over to defense counsel?

Mr. Francis X. Beytagh, Jr.: No, Your Honor.

The tapes were scrubbed, as I understand it --

Justice Byron R. White: Well, I know, but the -- any record that was left; the transcript or the log.

Mr. Francis X. Beytagh, Jr.: Any record that was left that contained any conversation that either was identified as including Mr. Dioguardi or it was questionable of about -- whether it did or not was turned over to him.

Justice Byron R. White: Not -- no determination was made that, yes, it involves his voice but what was set was irrelevant, so we won't turn it over to him?

Mr. Francis X. Beytagh, Jr.: No, Your Honor.

The determination first was made that, under the approach the Government had been following, that there was nothing in here that needed to be turned over.

Now, the Court of Appeals was not satisfied by that submission.

The Court of Appeals asked for the Government to be more explicit.

The Government then was more explicit and indicated these two instances, and then the Court of Appeals remanded it for this hearing.

The hearing was conducted, at which time, the government turned over everything to the judge, suggested to him that, as I said, this one exhibit contained all of the material.

He made a finding to that effect.

It was turned over to petitioners and it proved to be wholly immaterial and irrelevant.

Justice Potter Stewart: And this all had to do with surveillance that took place down at Florida several years ago?

Mr. Francis X. Beytagh, Jr.: It was about four years before.

It was in 19 -- November of 1962.

So --

Justice Potter Stewart: Some years before the commencement of this conspiracy and it was in a restaurant in -- down in Florida, wasn't it?

Mr. Francis X. Beytagh, Jr.: It was in a restaurant called Casa Maria Restaurant in which the subject of the surveillance was a man named Ritchie and this man, Dioguardi, apparently frequent to this restaurant.

Justice Potter Stewart: But the restaurant -- Dioguardi didn't have any proprietary interest in the restaurant, did he?

Mr. Francis X. Beytagh, Jr.: As far as I know, he did not.

The finding of fact, as Your Honors know, there was no printed appendix in this case.

So, it's a little bit difficult to make references, but the -- in the appendix to the petition that was filed, the judge, on page 45 (a) and appendix B, made this finding after in camera examination the Court finds that Government exhibit 103 truly comprises all those portions of Government exhibits 100 and 102 in which any defendant in this case was a participant or a possible participant.

The Court orders general -- Government exhibits 100 and 102 sealed for appellate review.

There is no relevant connection between any of the remaining material and any of the defendants, this prosecution, or the issues of this hearing.

This is Finding 9.

I see my time is up but, Your Honor, for the reasons stated, we submit that the convictions in this case should be upheld and the decision below affirmed.

Justice John M. Harlan: What -- can I ask you, Mr. Beytagh, what year was this case tried?

Mr. Francis X. Beytagh, Jr.: The case was tried in 1966 from June 15 to July 11, I believe, in 1966.

The operative facts occurred in December of 1965 and then there was indictment, and the trial came on in June of 1966.

Justice Hugo L. Black: What page were you reading from last?

Mr. Francis X. Beytagh, Jr.: I was reading, Your Honor, from the only place that I know of that the findings of fact of the district judge are reprinted.

They're in the petition -- the appendix -- no, Your Honor, that's their brief.

The petition for certiorari, page 45(a) --

Justice Hugo L. Black: 45 (a).

Mr. Francis X. Beytagh, Jr.: Which includes the district judge's opinion and findings of fact and conclusions on this remand hearing.

Thank you.

Chief Justice Earl Warren: Mr. Glasser.

Rebuttal of Abraham Glasser

Mr. Abraham Glasser: Thank you, Your Honor.

The Kolod-Alderisio problem in our case would exist only in relation to the Florida bugging.

We agree with the government.

There's no real issue on Florida, but there is a very severe issue, we say, in connection with an allegedly abortive additional bugging in Georgia.

I haven't spoken of that today.

We've briefed it pretty completely, and I would ask the Court to watch for that item since there was some animation here at the end about the Kolod problem which I think it is currently before the Court.

Now --

Justice Abe Fortas: Well, they didn't get -- they didn't make any tapes at all or get any recordings, did they, in that second incident to which you refer?

Mr. Abraham Glasser: They -- the agent who ran it said he didn't get the tape, and I think one other agent who was in the car with him said they didn't get any effective audible results.

But, again, we had a very hard pushing hearing in which I, for one, can wait, feeling that I was entitled to make a strong appellate point against the credibility of those agents on that issue too.

And, indeed, on that issue above all, they were crawling all over that part of Georgia.

They were there about to score, and they were not hesitating to bug.

They were bugging all over the country.

We think we can't prove that they were bugging in Europe.

These fellows lived with bugs.

It's incredible to me that they didn't have more than that one abortive car bug in Georgia.

They must have bugged Desist's room.

I'm speaking of perhaps -- well, all right, I'll drop that point for now because it's been thoroughly briefed.

Our whole submission is sufficiently stated in the briefs.

Now, on Fuller, again, may I say something that is -- have been abrupt.

We think this Court should withdraw its action in Fuller on the ground that certiorari there was improvidently granted and I'd like to say why.

We've covered it thoroughly in our last brief.

Fuller involved a telegram, we all know that, but back of that telegram was a subpoena.

The police in Fuller were not defiant or willful towards existing law.

The police in Fuller went to the Alaska Communications Body, whatever it's called, got voluntary relinquishment of the telegram from that body pursuant to a federal regulation and they also got a subpoena.

Now, the exact details of that whole subpoena picture, I don't know for sure of myself because I haven't seen the Fuller record but I've been guided through it in consultation in clause, consultation with one of the Fuller certiorari counsel.

I have the page numbers.

This is covered in our last brief.

Now, if there was a subpoena in Fuller for that telegram, how can Your Honors reach the question in Fuller of a violation of 605 because the very first sentence of 605 provides for subpoenas nor, at least colorably and subject to a closer scrutiny of the record in Fuller than -- which Your Honors may well wish to do because Fuller is a pretty drastic decision, and to render a drastic decision like Fuller on a record that may not stand up under scholarly criticism one of these days, I would think would be something that the Court that wish to hear about.

Justice Potter Stewart: What did the Alaska Court held in Fuller --

Mr. Abraham Glasser: The Alaska Court never --

Justice Potter Stewart: With respect to the 605 violation?

Mr. Abraham Glasser: Never touch this problem that I'm talking about now.

Oh, well, they touched the 605 problem.

Justice Potter Stewart: What did it involve with respect to the 605 violation?

Mr. Abraham Glasser: Yes, they touched the 605, but they didn't touch the problem of subpoena pursuant to 605.

Justice Potter Stewart: What did the Alaska Court hold with respect to the 605 violation of Fuller?

Mr. Abraham Glasser: They held that -- let me think.

Now, wait a minute.

Justice Potter Stewart: There's a dissent, but the Court held that --

Mr. Abraham Glasser: They -- oh, they held that 605 does not apply to states that they adopted the basic Schwartz line.

Justice Potter Stewart: Yes.

Mr. Abraham Glasser: Now, I have here a copy of the Alaska opinion.

Well, I suppose Your Honor really want to see it right this minute, do you?

Justice Potter Stewart: I can find it.

Mr. Abraham Glasser: Alright.

Justice Potter Stewart: Thank you.

Mr. Abraham Glasser: I'm sorry that my recollection is fuzzy on that.

I'm pretty sure it was the -- well, I said the Schwartz approach.

Now, on Katz on pre-Katz versus what the law was or what it became in view of Katz -- oh, my time has -- is expired.

I'm sorry.

Your Honor, Mr. Markowitz asked me and I told him I would ask you.

Can he argue for five minutes?

Chief Justice Earl Warren: No, your time is up.