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Case Basics
Docket No. 
David Gelbard
United States
No. 71-263
Facts of the Case 

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

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


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

Decision: 5 votes for Gelbard, 4 vote(s) against
Legal provision: Omnibus Crime Control and Safe Streets, National Firearms, Organized Crime Control, Comprehensive Crime Control, or Gun Control Acts, except for RICO (q.v.) portion

No, they cannot. In a 5-4 majority opinion written by Justice William Brennan, the Court held that the federal statute barring the use of evidence obtained through illegally intercepted communications also serves as a valid defense to civil contempt charges. Justice William O. Douglas concurred, expressing his belief that the Fourth Amendment's prohibition against illegal searches and seizures provided enough protection in and of itself to suppress the illegally obtained communications even without the federal wiretapping statute. In a separate concurrence, Justice Byron White suggested that courts should look for a way other than suppression hearings, which are time consuming and can interrupt the flow of grand jury hearings, to resolve such conflicts. Justice William Rehnquist, joined by Chief Justice Warren Burger and Justices Harry Blackmun and Lewis Powell, dissented. Rehnquist argued that the clear language of the statute in question, combined with its legislative history, prohibited its use as a defense to civil contempt charges arising from grand jury proceedings. To apply it in that situation would represented a "sharp break" with the "historical modus operandi of the grand jury."

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GELBARD v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 26 August 2015. <>.
GELBARD v. UNITED STATES, The Oyez Project at IIT Chicago-Kent College of Law, (last visited August 26, 2015).
"GELBARD v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed August 26, 2015,