GELBARD v. UNITED STATES

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Argument of Michael E. Tigar

Chief Justice Warren E. Burger: In Number 71-110, Gelbard and Parnas against the United States.

Mr. Tigar you may proceed when you’re ready.

Mr. Michael E. Tigar: Mr. Chief Justice Burger and may it please the Court.

I seek in its argument to show on constitutional and statutory premises that the opinion below is an unwarranted assault on settled principles, personal liberty and would permit the Government to violate the law without paying the price for doing so.

The issue if the Court please is whether a grand jury witness, under compulsion to testify, may prevent the use of wiretap material obtained in violation of his or her rights against him or her in the grand jury proceeding.

The facts are these, David Gelbard and Sidney Parnas were subpoenaed to appear before a federal grand jury in Los Angeles in February 1971.

They became aware that they had been overheard on a Court ordered wiretap, conducted under the provisions of the 1968 Omnibus Crime Bill.

The Government conceded that it intended to use the transcripts of petitioner’s overheard conversations to refresh petitioner’s recollection and to formulate questions to them before the grand jury, thus the Government admits that it intended to disclose or cause disclosure of overheard conversations of these petitioners.

Petitioners claim that the taps were illegal and refused to answer questions until they were afforded a hearing at which the legality issue could be determined and, under what the Government terms in its brief in the Egan case, the constitutional rule of Silverthorne, the Government foreclosed from disclosing this material in questioning petitioners.

The District Court denied a hearing and ordered petitioners summarily committed for civil contempt.

The Court of Appeals affirmed and this Court granted certiorari.

Our argument embraces three points if the Court please.

First, if disclosure is permitted before the grand jury in questioning these petitioners, they will suffer a harm of which the law can take notice.

Second, there is a remedy, constitutional, inherent power and statutory for this harm and third, I’d like to deal with the implications, the government’s position here.

The Government says in its brief that the harm that one suffers from being the victim of a wiretap is ended when the tap is disconnected.

Justice Potter Stewart: It’s what is ended?

Mr. Michael E. Tigar: Is ended when the tap is disconnected, that is Mr. Justice Stewart that there is no further harm from disclosing this material, even assuming it was illegally overheard.

This is not the rule that this Court has established, it is not the rule for example of Silverthorne versus United States, of Gelbard Importing Company versus United States, and although the case rests on statutory premises Nardone versus United States, Rio versus United States and other cases decided by this Court.

It is not the rule as established in such an elementary treaties is passed around the torts which identifies public disclosure of private facts is a crucial element of the Tort Law Right of Privacy.

Chief Justice Warren E. Burger: Mr. Tigar.

Mr. Michael E. Tigar: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: In your cases as distinguished from those that are to follow, was the wiretap authorized by warrant?

Mr. Michael E. Tigar: Yes, Mr. Chief Justice it was.

It was in both cases we have Court ordered wiretaps in which a determination of probable cause was made against other persons than the petitioners, the petitioners wandered in to the ambit of these Court ordered wiretaps.

Chief Justice Warren E. Burger: I just want to be sure to get that and I was clearing my mind.

Mr. Michael E. Tigar: I was just coming to that Mr. Chief Justice because the third kind of harm we’re talking about here is the statutory harm under the very act, under which the warrants were issued, that is to say Section 2511 of Title 18 makes it a federal crime to disseminate information unlawfully obtained by wiretapping and electronic surveillance.

Thus, the petitioners would be victims of such a federal crime before the grand jury and indeed looking at 2510 through 2520 of Title 18, one can see that the quid pro quo which Congress accepted for granting this broad power to tap and bug was a set of very detailed limitations upon the manner in which this material is to be used.

With then, there is harm here to the petitioners, what is the remedy?

The Government, if the Court please, concedes at page 23 of its brief in the Egan case which it adopts as its brief in our case.

That if there was a pre-subpoena, adjudication that these taps were illegal, the Court, in adjudicating them illegal, under what it aptly terms, the Constitutional Rule of Silverthorne would and could prohibit the Government from using this illegally obtained material against these petitioners in this very grand jury proceeding, that is petitioners could hire a lawyer, file a civil suit under the authority of Go-Bart Importing Company, or Rio against United States or the Bivens case decided in this Court, short time ago and invoked a consistent course of Federal decision going back 60 years to Wise versus Henkel, in 220 U.S.

They would claim that the inherent power of the Federal Court could be used reaching out the Federal Equity Power to enjoin the Government for making use of this material.

Of course, as this Court has heard this morning, an argument in Tatum case, the Government might claim in such a civil suit that the case was not right for an injunction to issue, that is if the petitioners could not, before they have received the subpoena, demonstrate the kind of immediate harm that the Federal Equity Power has customarily used to protect against.

But petitioner’s case, if the Court please, could not be more right, and that is why it is incredible to us that the Government won’t go the last six inches with us, since they have agreed on just about everything else and say that when the petitioners are standing in the jail house door that surely they have a right to prevent the use against them of this material.

They are not, the petitioners are not, like the defendant in the case of Blue against United States.

In the position of a gratuitous intervener in the grand jury, who merely suspects that here she is being talked about in the secrecy of the grand jury room and wants to stop the grand jury’s process.

No, they are standing in the jailhouse door because the material the Government admits is going to be used against them in the grand jury room.

So this case is no different, from asking a District Court to sustain any other claim of privilege, any other claim of privacy protecting privilege if the Court please, at the behest of any other grand jury witness, in any other grand jury, in any Federal Court in the land.

In this connection, we ask the Court to note, as I mentioned before to the petitioners are after all, if this tap is illegal, being made the victim of a federal crime and they’re in the grand jury room.

And so the Government asks this Court to break the promise which this Court made, in the Alderman case in two ways.

First, by negating what Alderman termed the constitutional rule that forbids using the fruits of unlawful tapping against persons who, like the petitioners are agreed and second, they want to undermine Alderman by urging this Court to permit the Government to commit the federal crime detailed in Section 2511 and in this Court’s words, to let those who flop the rules go unscathed and to cavalierly disregard the rights of the person done with the act.

So this Court can decide this case based on elementary principles of equity jurisprudence with some attention to the mandate of the Fourth Amendment in protecting the right of privacy, and some attention to the inherent power in the words of Wise versus Henkel of the District Court to protect against abuse of its process by its officers.

The constitution surely requires no less, but there is, as two Courts of Appeals, one of them en bank have held a statutory ground of decision, which is available to the Court in this case.

A 1968 Act, Sections 2510 through 2520 of Title 18 provide for notice, for hearing, and for suppression.

At the instance of those who like petitioners, are about to be harmed by surveillance against them.

Section 2515 of the Act forbids the use of material unlawfully obtained in any Court or grand jury proceeding.

Section 2518 of the act in Subdivision 9, requires that before material obtained under the Act is to be used against a person, there must be ten days notice given to that person.

Other way this is one answer to the Government’s contention that our position here is going to sabotage grand juries.

The Government knew it was going to use the fruits of this tapping against Mr. Gelbard and Mr. Parnas.

If they had sent ten days before that grand jury appearance a letter saying we intend to use it, Mr. Gelbard and Parnas could have come in to the District Court, asked the District Judge to look at the order authorizing the tap, gotten the threshold determination of legality and illegality.

Chief Justice Warren E. Burger: Mr. Tigar, I think I heard you say several times, something to the effect that Government was going to use this against them.

Are Gelbard and Parnas the subject of the Grand jury inquiry?

Are there activities now being investigated by the grand jury?

Mr. Michael E. Tigar: Their conversations are overheard, Mr. Chief Justice.

Chief Justice Warren E. Burger: What’s the purpose of the grand jury investigation that is going on?

Mr. Michael E. Tigar: The Grand jury investigation Mr. Chief Justice has, does far resulted in several indictments.

Those are mostly in the field of interstate gambling.

One of the people that’s been indicted, Mr. Jerome Zarowitz, was formerly Executive Vice President of a hotel called Caesars Palace in Las Vegas.

Mr. Parnas is an accountant who works in New York for Caesars Palace, so, so far as we can determine, there is -- there is some connection between what the grand juries indicted about and what they want to ask Mr. Parnas about.

With respect to Mr. Gelbard, the questions asked that are reproduced in the appendix focus on the allegation to put it bluntly that he was the bagman carrying the proceeds of illegal interstate gaming between Los Angeles and Las Vegas.

Chief Justice Warren E. Burger: Well, this sounds as though what Parnas and Gelbard fear, is that they may be exposed to some criminal prosecution, is that what you’re telling us?

Mr. Michael E. Tigar: Mr. Chief Justice, with respect to Mr. Parnas, the Government informs us in a footnote to its brief that it intends to seek immunity grant for him if he should return to the grand jury, and the Government represented below and does here that it has no intention at this time of prosecuting Mr. Gelbard and Mr. Parnas.

So I think that --

Chief Justice Warren E. Burger: If he has any such fear, doesn’t the Fifth Amendment give him rather sweeping protection?

Mr. Michael E. Tigar: If he were afraid of a criminal persecution, yes Mr. Chief Justice, he could invoke his privilege against self-incrimination.

Well here he is protecting another right.

Chief Justice Warren E. Burger: Isn’t that just what you indicated he was afraid of?

Mr. Michael E. Tigar: Mr. Chief Justice, he is of course afraid of that, as are all citizens faced with Government scrutiny of this kind, but he is also seeking, in this case, in this proceeding, to protect another right of his.

The Fourth Amendment, Mr. Chief Justice is not designed solely to protect guilty criminals and those who fear the Government is going to prove that they are guilty criminals, and Mr. Parnas and Mr. Gelbard are seeking an application of their Fourth Amendment rights in the context of this proceeding, which will vindicate their right of privacy, a right which is available to them whether or not they fear prosecution and whether or not they are granted immunity from prosecution by the Government.

They are thus, in no different position from any person, who invokes a privacy protecting privilege, in front of the grand jury, regardless of whether he fears prosecution by the Government.

Perhaps I can use an analogy if I may.

Let us assume, that the FBI, through stealth, listened beyond on a conversation between a penitent and a priest engaged in the ritual of the confession and that thereafter, the government called the penitent before a grand jury and sought to interrogate him or her about what had been heard in the confessional.

In such a case, if the Government indicated any intention to use the transcript that the FBI agents over hearing to refresh the penitent’s recollection about what she or he had told the priest.

A fair reading of the clergyman penitent privilege, at least at it appears in such statements as that in the proposed federal rules of evidence, would it seems to me permit the witness to interpose this privacy protecting privilege, and so here, where the intrusion is illegal, under the 1968 Act, and the Government admits that it intends to use it.

We say that the law, the right of privacy protects, and of course we supplement that by saying that irrespective of any Fifth Amendment problems, the statute forbids these material to be used in a way that the Government plans to use it.

Justice Thurgood Marshall: Do I understand your position to be that any person that gets in that situation can never be called before any grand jury on any time on any circumstance?

Mr. Michael E. Tigar: No, Mr. Justice Marshall that is not our position.

The Government could call Mr. Parnas and Mr. Gelbard and interrogate them about any subject under the sun, provided the District Court has held that the tap was legal.

Second, if the District Court -–

Justice Thurgood Marshall: Well, if the tap was illegal?

Mr. Michael E. Tigar: If it’s illegal --

Justice Thurgood Marshall: In 1971, could they call them in 1978 before grand jury?

Mr. Michael E. Tigar: The Congress has recently legislated with respect to this question and purported to set up a cut-off date with respect to claims of illegality, but passing that statutory provision, the Government would be obliged in such a case, merely to purify its evidence and to show that the questions it wanted to ask were either so far removed from the initial illegalities so as in the words of Wong Sun to dissipate the taint or again in the words of Wong Sun, derive from an independent source, and of course the rule of Wong Sun in this connection is subsequently been applied I believe by its citation in the Alderman situation, so the Government is not foreclosed whenever calling them, it just can’t violate people’s rights without paying the price, which is that it cannot use the fruits of its illegality.

Justice Thurgood Marshall: I am just trying to find out how much price did you want to pay?

Mr. Michael E. Tigar: No more than the illegality is worth, Mr. Justice Marshall, which is to say, they can’t exploit the wrong that they’ve done, that is all the limitation we want to put on the government in this case.

Now, to all of this, the Government replies what?

That the rule which the prior decisions of this Court and plain meaning of the act established, would impose too heavy a burden on the administration of criminal justice.

There are two answers to this contention, first, that it isn’t true and second, we invite to Court to think of the alternative.

This was a tap under the provisions of the 1968 Act.

The 1968 Act, if the District Judge orders it, gives persons overheard in these taps the right to be notified for the fact they have been overheard, thus, it requires the Government to keep records.

Government says in its brief that in the remand in the Alderman case, they spent 20 man-days searching through the records to see whether or not the petitioners there had been overheard.

I can understand that, this Court knows from bitter experience how difficult it was to ferried out taps that the FBI had conducted and subsequently attempted to hide even attorneys in the Justice Department.

But under the 1968 Act, all of that is supposed to be over, there supposed to be records kept and so the note is giving function that the act makes a crucial part of its protection, of the rights of the individual can be adhered to and complied with.

There is finally, or second rather, the gratuitous assertion that these petitioners are not trying to protect their rights, they are trying to shield somebody else that if they’re really concerned about themselves, they’d invoke the Fifth Amendment like good citizens and not worry about all these privacy argument.

They seek, as I have mentioned before to protect their own right of privacy as Chief Judge Sobeloff said, in the case of Lankford versus Gelston, upholding the use of the federal equity powered issue and injunction against illegal search, it would be a grotesque irony if our courts protect only against the unlawful search which uncovers contraband, by the exclusionary rule, while offering no relief against an admittedly unlawful pattern and practice, affecting hundreds of innocent homeowners.

Thus, we are saying here that the privacy protecting job of protecting Federal District Court isn’t limited to saying that contraband seized from somebody who is proven guilty by the fact the contraband was seized, ought not to be received in evidence, that the privacy protecting function arises anytime a citizen is about to be the victim of an invasion of privacy directed against him or her, the Government said in Alderman and then said it in this Court and through the words of the Solicitor General that it was concerned about people like petitioners, third parties wander in the taps, that have been authorized against somebody else.

We invite the Government in this case to share that concern that we have about these third parties under these circumstances.

These are not, if the Court please, the times of the assize Clarendon in which grand juror sat under a tree and gossiped about breaches of the king’s peace.

The grand jury is a formidable force, with the power to call on many investigative agencies to pull people off the streets and compel them to testify.

It may be used for investigation and as a dress rehearsal for the Government’s case in chief of trial.

It is the sole inquisitorial element, in an accusatorial system of jurisprudence.

There must be limits on its power.

Yes, those limits may slow down the process some, as we say in our brief, due process is always slower than summary process or drumhead process or pistol at the head process or as in this case no process at all.

In conclusion, we say only that a great deal has been written and more said about the way of recent congressional legislation on crime.

Many see in these statutes an unyielding hostility to civil liberty, but however these laws may fair here, when measured against the constitution, this Court should surely set its phase against any attempt, as in this case, to read out of those statutes the precious few concessions to personal freedom, which they indisputably contain.

The Government’s position here, if the Court please is sabotaged.

It is sabotaged of the 1968 Act, sabotaged of a 170 years of this Court’s decision and sabotaged of the rights of liberty and personal security.

Chief Justice Warren E. Burger: Mr. Friedman.

Argument of Friedman

Mr. Friedman: Mr. Chief Justice and may it please the Court.

We think the starting point in this case, should be the law as it existed prior to the 1968 statute.

Our position in this case is that prior to that law, it was well settled that a witness before a grand jury could not challenge before being required to give testimony before that grand jury, either the evidence which led the grand jury to summon him or the evidence which was proposed to be used before the grand jury in examining him.

And our position furthermore is that Congress cannot be deemed to have changed this well-settled principle without some clear expression, indicating that it intended to do so in the 1968 Act and then we looked at the 1968 Act, we think, not only does that act not show any congressional decision to change it but on the contrary, it affirmatively shows an intention to continue that rule and not to permit witnesses before a grand jury, to challenge the evidence before the grand jury.

Prior to turning to this discussion however, I’d like to respond to one question.

Unknown Speaker: Challenge the evidence or declined to answer questions?

Mr. Friedman: Well, decline to answer questions Mr. Justice, on the basis of the evidence before the grand jury that claimed --

Unknown Speaker: The grand jury is trying to adduce evidence by getting this witness to answer questions.

Now what he was doing is -- these two gentlemen were doing was refusing to answer questions, isn’t that right?

Mr. Friedman: Refusing to answer --

Unknown Speaker: Not challenging evidence, they were asked to give evidence.

Mr. Friedman: Well but they refused to answer questions Mr. Justice, for two reasons.

First they said, the only reason the grand jury was led to call them was because of this electronic surveillance and the information it have obtained and secondly they said as objective as the Government recognized, that the evidence obtained through this electronic surveillance would be used to refresh their recollection, and that is what they objected to.

They said we have a right not to testify before the grand jury until we can first determine whether or not, the evidence which the grand jury proposed to use in either examining the witnesses which led the grand jury to call the witnesses was the product of illegal electronic surveillance.

They want to litigate out before testifying the question whether or not there was improper electronic surveillance relating to them and our basic submission to this Court is that they do not have the right to do that, that that is an issue they can raise only if and when the evidence is sought to be used against them, against them in a criminal proceeding.

Unknown Speaker: What evidence?

I am a little confused that say you, talking about challenging evidence, they were called in order to give evidence and you say that they can challenge it when the evidence is sought to be used against them, now you are talking now about their own answers to those questions?

Mr. Friedman: There are any --My answer to this one Mr. Justice, any information that the Government obtained as the result of a search and seizure that was in violation of the Fourth Amendment can be excluded by them if they are ever preceded against criminally, they can exclude that, but we say, they cannot refuse to answer questions put to them, before the grand jury on the claim, on the claim that this kind of evidence was the reason for their question.

They can claim personal privilege if they claim that the answers to these questions would tend to incriminate them.

They may make that claim.

If they claim that the answer to the question would violate any of the traditional privileges, such as lawyer-client privilege, they can refuse to answer on that ground but we say they cannot refuse to answer on the ground that there was a prior, illegal electronic surveillance which either led the grand jury to call them on the basis of which they would be questioned.

They cannot refuse to give evidence in other words, before the grand jury on the basis, on the basis of the factors that led the grand jury to call them.

That’s not we think an appropriate issue to litigate in the context of the grand jury proceeding.

Justice Potter Stewart: Now what if there is subsequently a criminal trial at which they, neither one of these petitioners is a, neither one of these parties is a defendant.

Somebody else is a defendant but they are called as witnesses in the criminal trial, witnesses for the Government or as on cross-examination by the Government, can they do it then?

Mr. Friedman: No, Mr. Justice, they cannot, they can again refuse to answer any question that might tend to incriminate.

They cannot refuse --

Justice Potter Stewart: So you are not limiting it to a grand jury?

Mr. Friedman: No but that is the only question in this case.

Our basic position is that a witness cannot refuse to answer a question either before a grand jury before a Court, on the ground that this witness, that this question is somehow the result of some illegal electronic surveillance.

Justice Potter Stewart: Of that very witness?

Mr. Friedman: Of that very witness, that is correct.

Justice Potter Stewart: You say they can’t even assert that at a trial, at a criminal trial.

So you are limiting your argument to the grand jury?

Mr. Friedman: No, our argument goes beyond that we think that is what the law has always been, a mere witness cannot refuse to answer an otherwise proper question on the claim that previously there had been some violation of his rights under the Fourth Amendment.

He can refuse to answer any question in terms of a permissible privilege, a privilege that the law allows, but he cannot refuse --

Justice Potter Stewart: Well, that is a question begging.

What is a permissible privilege?

Mr. Friedman: Well, we think a permissible privilege is a Fifth Amendment privilege against self-incrimination and what I would call the personal privileges where, in contrast to the giving of the testimony which relates back to an illegal, allegedly illegal search and seizure, where the mere giving of the testimony itself reaches the privilege, that is in the case for example the lawyer-client communication, the privilege is breached.

At the time the witness is forced to disclose the confidential communication.

Now in the search and seizure situation if there has been illegal electronic surveillance, that has happened a long time before, the question is whether that can now be made public and basically, basically in case for example of a criminal trial, if a witness declines to answer a question, claiming the question results from an illegal search and seizure, what he is really seeking to do is not to prevent the introduction of that evidence against him but to prevent the introduction of that evidence against a third party and we think at least well it doesn’t specifically hold that, at least the rationale of the Alderman decision indicates that that can’t be done.

Justice Potter Stewart: My hypothesis it was his Fourth Amendment right that was violated, the witnesses and by asserting the right not to answer, he is trying to, he is to through him, a sanction is being imposed against violation of his Fourth Amendment rights.

Mr. Friedman: Well, but the Fourth Amendment right has already been violated Mr. Justice and we don’t --

Justice Potter Stewart: And will be continually I suppose if there is no sanction against its violation.

Mr. Friedman: Well, there are sanctions, for example only last term, this Court in the Bivens case is indicated that there was a right of action for damages and under this 1968 statute as an expressed right of action for damages given, there are also criminal penalties for violation of the law, but we don’t think that a witness in effect can refuse to give partnered evidence because he says, well, this would compound and continue the violation of the Fourth Amendment.

His rights, the right is to be protected against, to be secure against unreasonable searches and seizures.

The search and seizures has taken place by definition long before, that is we think when the right --

Justice Potter Stewart: Well, that’s true in the basic Weeks situation or Mapp situation.

The violations taken before the crime.

Mr. Friedman: Yes, yes but -- if I may Mr. Justice, I think that illustrates the reason why we believe the courts have not permitted.

People like witnesses before a grand jury to raise these issues in the Weeks and then the Mapp situation and all the cases involving the exclusionary rule the question was whether the evidence taken in violation of the Fourth Amendment rights was to be used against the defendant.

And the theory it seems are these cases is that the right giving you by the Fourth Amendment to be secure in your person and property against unreasonable searchers and seizures would be an empty thing.

If despite that the evidence obtain through this search and seizures could be used against you.

Could be used against you but in the case where a witness is merely being asked questions, where he is not a defendant in a case the evidence is not being used against them.

Justice Thurgood Marshall: These now raises another point which is that as I understand that under no circumstances where he have any business for the grand jury.

Under no circumstances what he volunteer any testimony and under no circumstances where he give any information unless force to do so, and two, that is no way the government would have known about it that he was a witness except by the step.

And therefore because the government got this piece of information which is that he did know something, that that in it if the government had not had that information they never recalled.

Mr. Friedman: Well –-

Justice Thurgood Marshall: And he is trying to find some way to get around being a volunteer witness before the grand jury.

Mr. Friedman: Well, he is not a volunteer witness he is --

Justice Thurgood Marshall: As I understand your position is that before the 1968 Act there was no way you could question any way that the government got the evidence, is that right?

Mr. Friedman: In so far as he was a witness before the grand jury that is correct.

Justice Thurgood Marshall: Regardless of how unlawful the action of the prosecuted authority was.

Mr. Friedman: With one exception Mr. Justice, with one exception and that is the situation involved in the Silverthorne case.

Justice Thurgood Marshall: That’s right.

Mr. Friedman: As to which reference has been made.

I’d like to discuss briefly the Silverthorne case because we think that is a different case.

What happened in the Silverthorne case was that the Silverthorne’s had been indicted and after they have been indicted and arrested the government officials without any authority at all just came into their house and made a complete swift of all their personal property they took all the books and records and brought it in there.

And these people in turn went to the District Court and got a court order directing the return of this property.

The court holding that the property had been illegally seized from the government.

After that a new grand jury was convened which was investigating other violations of the law by the same individuals and what the new grand jury did was to issue a subpoena for the identical books and records that have previously have been taking and have been ordered returned and this Court in a landmark opinion refused to do so.

It refused to do so I think not passing any general principal that whenever a witness is called before a grand jury he has the right to contest the way in which the grand jury called him but rather on the particular circumstances as case.

Silverthorne is a three-page opinion of Justice Holmes as written in his usual tight style and what he said I think reveals very clearly what was the matter with this case, I think he explained the government contention as follows.

He said the Government’s contention is that although of course its seizure was in outrage which the government now regrets, it may copy the papers, use the knowledge as obtained and compel production again.

I think the Silverthorne case is the unusual situation where you just had quite outrageous conduct where you had a search that had previously been judicially determined to be illegal and then the government just around and said, well we don’t have to pay any attention to that we can undercut that determination of illegality by just calling the records back before another grand jury under a new subpoena.

And this Court very properly refused to countenance that.

This case it seems to us is the antithesis of that.

This is a case in which the surveillance was made pursuant to a Court Order.

There’s no allegation here.

There’s no determination here that there was anything illegal about the surveillance.

They now claim the surveillance as illegal.

They now object to the surveillance but it seems to us, this is a very different situation from what you had in Silverthorne.

Silverthorne is of course relied on by both the petitioners in this case and the respondents in the next case as announcing this broad rule.

We think Silverthorne turns on its particular facts.

That Silverthorne does not announce this broad rule.

The rule, the rule has been an ordinarily that a grand jury may consider any evidence it has however it came into the grand jury’s possession.

This court repeatedly as recognized that a defendant in a criminal case cannot challenge the indictment on the ground that improper evidence was produced before the grand jury.

Unknown Speaker: Mr. Friedman do we reach these issues you are now moving at this juncture.

Don’t we reach them only after we consider the statutory ground?

Mr. Friedman: Well it is hard it --

We can approach it either way their contention is that they -- you could approach it I think --

Unknown Speaker: Let’s assume, let’s assume to the moment that we are determined that the disclosure in the grand jury is contrary to statute and we wouldn’t never -- we wouldn't reach Silverthorne or any other constitution.

Mr. Friedman: That is correct I just gave this as a background because of the argument to which I now like to turn to show that Congress in the 1968 Act not only did not intend to give the witnesses before the grand jury this right but that in fact it intended to continue as a legislative history shows and has indeed as the footnote in Your Honor’s opinion in the Alderman case indicated that it intended to continue the existing rules of standing with respect to this suppression of evidence before grand juries.

And I would now like to turn to the language of the statute itself.

It’s been a good bit of discussion here in general terms about the statute.

I’d like to deal specifically with it.

The First Provision is in Section 25.

Unknown Speaker: I want to make sure that what make that -- what you’re addressing yourself to.

This is on the assumption.

We must assume that this juncture that attack is illegal under the statute.

Mr. Friedman: I think so.

I will come to -- I have an argument as to why--

Unknown Speaker: Now, we are assuming that the provisions of the statute were not complied with in authorizing the interception.

That’s the assumption we make.

Mr. Friedman: That’s the assumption of this argument.

Unknown Speaker: And nevertheless you say -- and nevertheless you say the statute does not permit or does not anticipate exclusion of the grand jury.

Mr. Friedman: By a grand jury witness.

That is correct and I will say that I don’t want to interrupt my argument now but in the next case, I would make an argument that in fact, in fact these allegations are not enough to establish a violation of the statute.

Unknown Speaker: All right.

Mr. Friedman: But we assume for purposes of this discussion that there has been a violation.

Unknown Speaker: And that this was an illegal interception.

Mr. Friedman: We assume that for purposes of the discussion.

Unknown Speaker: And nevertheless, you say Congress did not provide for an exclusionary rule or a rule against the used of the fruits of that attack.

Mr. Friedman: That is precisely so.

That’s precisely our submission Mr. Justice.

Now let me start with Section 2515 which is set forth the page 8 of the petitioner’s brief this green document and its caption prohibition of used of evidence as evidence of intercepted wire or oral communications and it says whenever there is been any interception of an oral or wire communication no part of the contents of such communication, and no evidence derived there from may be received in evidence in any.

And then there’s a larger group of proceedings any trial, any hearing before any grand jury, before any legislative committee or any authority of the United States etcetera, etcetera if a disclosure of that information would be in violation of the statute.

Now this statute provides the standard.

It contains the basic prohibition upon the received in evidence of material in violation of the statute.

However, it does not explain the procedures by which this right is to be implemented and the procedures for implementing this right as contained in Section --

Unknown Speaker: Well, that’s all you had on its face.

It leads right on this situation, isn’t it?

Mr. Friedman: It would seem to with one qualification which I just like to make for qualification but not argue at length at this point what it prohibits is the precedent evidence of such material --

Unknown Speaker: Or any fruits?

Mr. Friedman: Or any fruit if the disclosure of that information would be in violation of this chapter.

Not if the interception was in violation of this chapter but if the disclosure would be in violation of this chapter and I have this argument which I make it to read that takes a little time as to why the disclosure was not but its starts with the prohibition.

However 2518 subparagraph 10 which is contained at page 20 of the petitioner’s brief provides the procedures for motions to suppress and the Senate Committee Report on this statute and this is the only pertinent legislative history on this Title because the House Committee Report did not deal with the Bill in its present form so that the prohibitions of 2515, the prohibition upon the receipt of the evidence must of course be read in light of Section 2518 (10) discussed below which defines the class entitled to make a motion to suppress.

That is it does not --2515 itself does not contain any operative provision as to how the right provide that there’s to be enforce.

That is provided by Section 2510, 2518 (10).

And the Senate Committee also said that Section 2518 (10) later on when it came to discuss that must be read in connection with Section 2515 which it limits in other words the right provided in Section 2515 is limited by the standing provided in Section 2515 is limited by the standing provided in Section 2518 (10) and it also said that this latter section subsection 10 provides the remedy for the right created in Section 2515.

So that it seems to us there’s a clear interrelationship between them.

Now what is the provision of the remedy provided in 2518 (10).

Well there are two striking things about it.

The list of proceedings before which a motion to suppress may be made is the same as that in 2515 with two striking exceptions.

There’s no provision made in that for a grand jury proceeding.

And there is no provision for that in a -- before a legislative committee.

And the legislative history we think shows quite clearly that this omission was not inadvertent.

That in fact, Congress intentionally decided not to permit the making of these motions to suppress in connection with either a grand jury proceeding or a legislative proceeding.

Unknown Speaker: Are you saying that both with respect to a -- neither to that has of the witness nor of a person who is being investigated?

Mr. Friedman: I would say that it so Mr. Justice because it seems to us that it sometimes very difficult to drive the line between someone who is a witness and someone who is being --

Unknown Speaker: Sometime it’s easy though.

Mr. Friedman: Sometimes it is easy but --

Unknown Speaker: Even when it’s easy the – it’s good if defendants themselves would not either then or later claim that his indictment was illegal because it rested on illegal interception.

Mr. Friedman: That is correct he could of course object to the introduction of any evidence at the trial against him based on an illegal interception.

Unknown Speaker: Right, right but actually he couldn’t tell them this indictment.

Mr. Friedman: That’s correct Mr. Justice.

The committee, the Senate Committee in describing this subsections stated as follows: because no person is a party as such to a grand jury proceeding.

The provision does not envision the making of a motion to suppress in the context of such a proceeding itself.

Normally, there’s no limitation on the character of evidence that may be presented to a grand jury which is enforceable by an individual citing Blue against United States.

There is no intention to change this general rule.

It is the intention of the provision only that when a motion to suppressed is granted in another context and that we think is an articulation of a basic principal I have discussed and announced in Silverthorne.

When a motion to suppress is granted in another context its scope may include use in a future grand jury proceeding.

Nor is there any intention to grant jurisdiction to federal courts over the Congress itself and of course if the petition is a correct that this provision permits a witness before a grand jury to challenge the evidence, it seem the same total I think that a witness before a congressional committee could object to answering questions before the committee because he said the committee called me as a result of the evidence obtained through an illegal wiretap.

Now the contempt proceeding, the contempt proceeding is we think so costly connected with the grand jury proceeding that it can fairly be said to raise the issue in the language of the committee in the context of a grand jury proceeding.

The only way a witness can be compelled to testify before a grand jury is to hold them in civil contempt to get the Court to tell the witness as the witness was told in this case that they must stand committed for the life of the grand jury until they answer the questions.

Unknown Speaker: It’s interesting you do not cite any of the Fourth Amendment cases given in the grand jury in your brief.

Mr. Friedman: Oh!

I have look I said Mr. Justice we do, I believe but they cited in the brief in the Egan case.

Unknown Speaker: Oh I see!

Mr. Friedman: The Egan case was the case in which referred prior the first brief and we do cite the grand jury to cases and discuss them at pages 14 to 15 of our Egan brief.

We cite a number of Court of Appeals cases which have declined permit this type of motion to be made before a grand jury.

Our brief in this case because of the fact that in this case with --

Unknown Speaker: Did you, in the other brief you deal with Dionisio case of the Seventh Circuit?

Mr. Friedman: No I am afraid not, we don’t.

Now I would also like to turn to another provision of the statute which reflects the same intention on the part of Congress and that is subsection 9 in the middle of page 20 which has been referred to excess the contents of any interception -- intercepted wire communication shall not be received in evidence or otherwise disclose in any trial hearing or other proceeding unless each party is given 10 days notice there if not, two things about the language.

It spokes -- speaks of trial hearing or other proceeding and it speaks of a party.

Ordinarily, a witness is not viewed as a party before the grand jury.

The word party as we used it in our law means parties to a trial.

And once again the legislative history the Senate Report confirms to that view because in speaking of paragraph 9, what the Senate Committee says is proceeding is intended to include all adversary tight hearings.

It would include a trial itself a probation revocation proceeding or a hearing on a motion for reduction of sentence.

It would include a grand jury hearing citing again Blue against United States.

So once again it seems to us that the legislative history of these provisions is as clear as can be, that Congress did not intend by these words to give any rights to a witness before a grand jury.

This suggestion has been made both in this case and in the following case that this statute is so clear on its face.

That no resort need be had to the legislative history, it is clear on its face they say because they look to the definition of aggrieve party and they say that the people who’ve been overheard come within the definition of aggrieve party therefore that is the end of the matter.

Well, this is a very complicated statute.

It occupies, a text to this Title alone occupies 23 or 24 of the printed pages in the brief.

It’s a statute that is certainly not clear on its face.It’s difficult to know what these things mean and I think it is essential in this case to have resort to the legislative history to ascertain precisely what Congress was seeking to do.

Precisely what rights Congress was giving to this people whether Congress was intending for the first time to give witnesses before the grand jury the right to challenge the introduction of evidence before it.

Now as I have indicated a Congress did not leave witnesses in this situation without a remedy.

Congress provided an unusual thing, it provide a specific suit for damages in Section 2520 of the statute.

And this provision would permit a witness if he has in fact been injured by an illegal surveillance to recover damages.

Indeed, it’s a rather unusual provision because it permits punitive damages, not only actual damages and attorney’s fees but punitive damages.

Now with this as far as the 1968 Act is concerned, I would like to turn to another provision which is a provision of the Second statute, the 1970 statute.

The claim has been made that even if the 1968 statute perhaps did not give these witnesses any rights, nevertheless, the 1970 statute did.

And that is a provision Section 3504 and that provision was the reaction to this congressional reaction to this Court’s decision in the Alderman case.

Congress was concerned that as the result of the Alderman decision there would be an enormous increase in the number of hearings required in court to litigate all of his claims of illegal electronic surveillance and Congress attempted to reduce the number of those hearings and what Congress did in this Section and it can be found at page, the end of our brief in the Egan in this case -- Sorry none of our brief in the Egan --

Justice Potter Stewart: Not in the Green brief?

Mr. Friedman: No, it’s not in the Green brief Mr. Justice.

It is in the Government’s brief in the next case.

Justice Potter Stewart: In Egan?

Mr. Friedman: In Egan at pages 33 to 34 and this provision contains three subsections and I would like in order to explain it first to discuss the last two and then come to the first one because the only one they can rely on is the first one.

The last two provisions said as follows: that would respect to any electronic surveillance taking place before June 19, 1968 and that was the effective date of Title 3 of the 1968 Act.

They shall not be required any hearing with respect to the validity of that surveillance unless the information brought to bear may be relevant to the claim of inadmissibility of the evidence.

That was, I read congressional concern that people would make all sorts of allegations that they may have been some kind of a taint and that as a result of that taint, the evidence would be rendered and admissible.

Then they went on beyond that and said that in any of that if there was electronic surveillance before the June 1968 date and the surveillance occurred more than five years prior to the conduct to this -- at issue on the case.

There was to be no consideration otherwise any possible taint of an electronics surveillance that occurred more than five years before the time at which the evidence of violation -- evidence of violations involved that was to attenuate it.

So it started that was the basic purpose of the statute.

Then, what its said was in any trial, hearing or other proceeding you know before any court, grand jury etcetera, etcetera.

This language does include the word grand jury.

It does not include the word legislative committee and it says upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act and unlawful act is defined in the statute to mean electronic surveillance the government shall affirm or deny that allegation.

Chief Justice Warren E. Burger: Thank you Mr. Friedman.

Do you have anything further Mr. Tigar?

Rebuttal of Michael E. Tigar

Mr. Michael E. Tigar: Yes, Mr. Chief Justice, just a few words in rebuttal if may about the proper meaning to describe to this statutory terms to which Mr. Friedman referred.

The Government’s positions seems to be that only if the legislative history is ambiguous need we read the statute here.

I invite the Court’s attention first to Section 2515 of the statute which is at page 8 of the appendix of our brief.

That section forbids receipt in evidence in any trial, hearing or other proceeding in or before any grand jury.

A certain evidence if disclosure would be in violation of this chapter apart of the this chapter to which that statute refers is surely Section 2511 which makes it a criminal offense to disclose information obtained in violation of the Crime Control and Safe Streets Act.

Particularly, Section 2511 subdivision 1 (c) reprinted at page 5 of the appendix of our brief.

So there is in 2515 not just a right but a remedy.

Now, the legislative history if the Court please, does say that Section 2518 subdivision 10 of the statute which has to do with notice and hearing is not intended to apply to a grand jury proceeding and it cites the case of Blue versus United States.

We do not contest the holding in Blue in this proceeding.

We are not saying that a person indicted has the right to challenge the legality of the evidence the grand jury heard and we are not saying in this case that a person who suspects that she or he is being investigated by the grand jury.

Justice Byron R. White: What say no --

Mr. Michael E. Tigar: Pardon?

Justice Byron R. White: You would say that -- Would you say that the witness can apply with the person indicted, is that it?

Mr. Michael E. Tigar: I think Mr. Justice White that the preponderant rule in the Circuits these days undercuts the broad language of the Costello case, yes sir.

I think that when this Court next gets the issue that there would be a good argument made that you can --

Justice Byron R. White: What are the statutes commerce indicted or the person who indicted would be able to challenge the light and on the grounds of illegally obtained evidence put up with the grand jury?

Mr. Michael E. Tigar: I think so Mr. Justice White in this kind of a case.

Justice Byron R. White: What if something is wrong?

Mr. Michael E. Tigar: If I am wrong on that Mr. Justice White, I think we --

Justice Byron R. White: Where you wrong on these cases?

Mr. Michael E. Tigar: No, we’re not wrong on this case because --

Justice Byron R. White: That is tough line, I thought.

Mr. Michael E. Tigar: It is not a tough line Mr. Justice White because the person who is indicted that is whose made the defendant who is never been called before the grand jury has available of motion to suppress in the criminal case which if the grand jury indictment is based solely on wiretap evidence he is going to win anyway because the evidence of the Government has a trial in all the evidence.

They have a trial it’s going to be suppressed.

That’s typical in these gambling cases where the Government’ whole case is Jerry and Nickel on the bares on Sunday, right?

Right and that is the interstate telephone conversation.

It’s a bet.

It’s a violation of the anti-racketeering legislation.

That’s the government whole case; if that tap is illegal the Government case founders the motion to suppress.

Unknown Speaker: It is on (Inaudible).

Mr. Michael E. Tigar: It is the way it happens and that’s why there are cases in the Ninth and Seventh Circuits dismissing indictment because the evidence before the grand jury was illegal.

Unknown Speaker: But it doesn’t necessary follow in every case?

Mr. Michael E. Tigar: It doesn’t.

Unknown Speaker: Government's trial should maintain.

Mr. Michael E. Tigar: It doesn’t necessary follow in every case.

No.

Unknown Speaker: Let assume one where it doesn’t.

Mr. Michael E. Tigar: In that case, the motion to suppress in the criminal case still gives the criminal defendant a protection against the material being used against him or her.

The only person left unprotected then in the Government scheme of things would be the grand jury witness where the Government finds out about because of an illegal bug gets hold off the streets and he is told, you better answer these questions we’re making up.

You better help in a disclosure of this illegally overheard material otherwise you are going to go to jail for the life of the grand jury.

That is my conclusion --

Justice Byron R. White: You might be indicted yourself.

Mr. Michael E. Tigar: Or one might be -- one might be indicted oneself, yes Mr. Justice White.[Audience Laughing]

The Government’s position, also if the Court please, is anomalous because of the citation of Section 2520.

The government says presumably that Mr. Parnas and Mr. Gelbard could get a judgment in the civil case that they been illegally overheard that would be raised adjudicata and then when they came before the grand jury, I guess the government could not use this illegally overheard material.

But what’s the difference here?

The only difference is the case is right pertinent would be if they came in and brought a strike civil action without there never having gotten the subpoena to appear before the grand jury.

It is right because they are about to go jail.

This conclusion, Mr. Justice White and if the Court please that we’ve come to rests not just on Silverthorne which is a little different from this case but on Wise versus Henkel in 220 U.S.

And there this Court said no uncertain terms that the District Judge has the power to control the illegal conduct of its officers and the execution of its process.

The rule of Wise versus Henkel has not been disturbed by any subsequent decision and nothing in this statute or in the legislative history evinces any congressional intention to disturb it in cases arising under the 1968 Act.

And so Mr. Parnas and Mr. Gelbard are in no different a position before the grand jury than any other witness who resists the compulsion to testify by invoking some privilege designed to protect not against the incrimination but privacy.

The Federal rules of evidence that have been proposed to follow such privileges, trade secrets, political vote, priest penitent, lawyer client and there are common law ones such as the version of the marital privilege mention in the dissent in and the Wyatt case and the diplomatic privilege.

Justice Thurgood Marshall: Mr. Tigar what would happen if “A” beats up “B” and may “B” tell the story to the grand jury about “C”? What remedy does “B” have?

Mr. Michael E. Tigar: If “A” is a government agent.

Justice Thurgood Marshall: “A” is a priest.[Laughter]

Mr. Michael E. Tigar: Then aside from his remedy in the Canon Law Courts [Laughter] which he would have, a civil remedy that “B” would have would be against “A” and since there’s no state action involved at the point of the beating there isn’t at that point anything that the law can take notice of.

Justice Thurgood Marshall: But supposed it was a State Officer who beat him up?

Mr. Michael E. Tigar: If it’s a State Officer that beat up “B” to tell a story about “C” then Judge Learned Hand’s opinion in Inri Freed which is cited in our brief indicates that in such a situation of Federal Court has under its plenary equity powers the right and some would say that duty under appropriate circumstances to intervene to protect against the consequences.

Justice Thurgood Marshall: Now what?

Well, how?

Mr. Michael E. Tigar: How?

If “B” had already testified by suppressing the use of that evidence against “C” if he’d not by giving him the right not --

Justice Thurgood Marshall: What would he do before he testifies?

Mr. Michael E. Tigar: He could bring a suit citing Inri Freed as authority Mr. Justice Marshall.

Justice Thurgood Marshall: Which should be decided a month that be testified.

Mr. Michael E. Tigar: Well he could refuse to testify and ask that the Court uphold his claim as sufficient, excuse me, as the petitioners did here.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Print this transcript Transcript: 

Argument of Friedman

Chief Justice Warren E. Burger: We'll hear argument’s next in United States against Egan and Walsh, 71-263.

Mr. Friedman, you may proceed.

Mr. 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.

Justice 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?

Mr. Friedman: I think we do Mr. Justice --

Justice William O. Douglas: Or you don’t cite Davis versus Mississippi?

Mr. Friedman: No, we don’t cite Davis versus Mississippi.

Justice William O. Douglas: And I would say without a citing those two cases (Inaudible) fairly say that you are pretty (Inaudible).

Mr. 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 --

Justice 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?

Mr. Friedman: Well, we think Mr. --

Justice 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?

Mr. 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)

Justice William O. Douglas: (Inaudible) 250 US as I read it, the Fourth Amendment was involved.

Mr. 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)

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

Mr. Friedman: I would be (Voice Overlap)

Unknown Speaker: The Grand Jury case is (Voice Overlap)

Mr. 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.

Justice Byron R. White: So now, you’ve finally have made a -- taken a position one way or another?

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

Justice 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.

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

Justice 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?

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

Justice Byron R. White: So you now say no in a exception to place it off?

Mr. 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).

Justice Byron R. White: What kind of case have we got here, now?

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

Justice 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?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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?

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

Justice Byron R. White: But why didn’t the Government say yes or no in the District Court?

Mr. 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).

Unknown Speaker: 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?

Mr. Friedman: If the respondents had concurred.

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

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

Mr. 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.

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

Mr. Friedman: I assume so.

Unknown Speaker: 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.

Mr. Friedman: That is correct.

Justice 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?

Mr. Friedman: I would think so.

Justice Thurgood Marshall: Well, why not deny this, if it’s true?

Mr. Friedman: Well, I’m sorry.

In what context was this?

I’m sorry.

Justice Thurgood Marshall: A motion to suppress.

Mr. 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).

Justice Thurgood Marshall: I just don’t see why the Government can’t deny it?

Does the Government deny now?

Mr. Friedman: Deny?

Justice Thurgood Marshall: You do deny it now.

Mr. Friedman: Yes, we do deny it.

Yes, we do.

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

Justice Thurgood Marshall: When did you find that out?

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

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?

Mr. 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).

Justice William J. Brennan: 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?

Mr. 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.

Justice William J. Brennan: 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?

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

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.

Justice William J. Brennan: Well, I take it that we send it back to the Court of Appeals, opinion would be vacated too, wouldn’t it?

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

It will be weakened a good bit.

Justice William J. Brennan: But every time we (Voice Overlap).

Justice Byron R. White: There wasn’t any wire tapping.

It’s just an advisory opinion anyway.

Mr. 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).

Justice 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?

Mr. Friedman: The case of controversy is what (Voice Overlap).

Justice Thurgood Marshall: Is the opinion of a court not the judgment?

It’s opinion, isn’t it?

Mr. 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.

Justice 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?

Mr. Friedman: Well, I agree.(Voice Overlap)

Justice 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?

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

Justice Thurgood Marshall: The opinion is still there.

Mr. 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.

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

Mr. Friedman: The Court of Appeals announced the rule in this case.

Justice 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]

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

Justice Byron R. White: Where are you reading now?

Mr. 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.

Justice 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)?

Mr. 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.

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.

Justice Potter Stewart: Before you leave 3504, you probably -- is this the whole Section on pages 33 and 34 of Egan case?

Mr. Friedman: Yes.

Justice 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).

Mr. 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).

Justice Potter Stewart: Well, it doesn’t say so.

Mr. 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).

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

Mr. Friedman: I would think so, yes.

Justice Potter Stewart: Well, that’s not I know the issue here.

Mr. 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.

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.

Justice 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?

Mr. Friedman: Oh yes.

Justice Potter Stewart: The arguments you're now making.

Mr. 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).

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

Mr. Friedman: That’s right.

Justice Potter Stewart: And not necessary on the other hand for you to win either case.

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

Mr. Friedman: That is correct.

Justice Potter Stewart: In both cases?

Mr. 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).

Justice 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?

Mr. Friedman: Precisely.

Justice Byron R. White: And even though that involves difficult constitutional and statutory questions perhaps?

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

Unknown Speaker: 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.

Mr. 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.

Justice Byron R. White: Well then unless you lose.

Chief Justice Warren E. Burger: Mr. Levine.

Argument of Jack J Levine

Mr. 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 --

Justice 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?

Mr. 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).

Justice Byron R. White: Well what was involved here did you say?

Disclosure of the conversations or use or both?

Mr. Jack J Levine: Well, we never found out because there was (Voice Overlap).

Justice Byron R. White: But what are we arguing about then?

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

Mr. 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.

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.

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).

Unknown Speaker: (Inaudible)

Mr. Jack J Levine: I am sorry.

Justice Thurgood Marshall: Who were the parties?

Mr. Jack J Levine: Who were the parties?

Justice Thurgood Marshall: Yes sir.

Mr. Jack J Levine: Well, the witnesses in the proceeding.

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

Mr. 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.

Justice William J. Brennan: 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?

Mr. Jack J Levine: Yes sir.

Justice William J. Brennan: An intercepted oral communication, is that what you're talking about?

Mr. 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?

Justice 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.

Mr. Jack J Levine: No Your Honor, I wasn’t talking about (Voice Overlap).

Justice Thurgood Marshall: Well, that’s what I was trying to find out.

Mr. 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.

Justice 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?

Mr. Jack J Levine: Your Honor, there are -- you're talking about post indictment?

Justice Byron R. White: You don’t have to add any time.

Mr. Jack J Levine: I would say --

Justice 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.

Mr. Jack J Levine: Yes sir.

Justice Byron R. White: Now, how about anybody else?

Mr. 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.

Justice Byron R. White: But you think may the defendant challenge the indictment itself?

Mr. 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).

Justice 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?

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

Justice Byron R. White: It talks about a Grand Jury.

Mr. Jack J Levine: Yes sir and certainly a witness would have that -- would be one (Voice Overlap).

Justice 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.

Mr. Jack J Levine: Yes sir, I would say that is true.

Justice Byron R. White: Who are they?

Who are those people?

Mr. Jack J Levine: Well, (Voice Overlap).

Justice Byron R. White: You say it’s a witness?

Mr. Jack J Levine: It's clearly the witness.

Justice Byron R. White: Who else might it be?

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

Mr. 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).

Justice Byron R. White: But that’s your argument though, isn’t it?

Mr. 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.

Justice William H. Rehnquist: Mr. Levine.

Mr. Jack J Levine: Yes sir.

Justice 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?

Mr. Jack J Levine: Yes sir, it is.

Justice William H. Rehnquist: How do you confer the omission of the inclusion of the term Grand Jury?

Mr. 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.

Justice 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?

Mr. 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.

Justice William H. Rehnquist: Because it refers to the word court, you say that’s efficient even though it doesn’t mention Grand Jury?

Mr. Jack J Levine: Well I think its sufficient either way and I think that (Voice Overlap).

Justice William H. Rehnquist: Why did Congress include Grand Jury in one Section and not in another?

Mr. 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.

Justice William J. Brennan: Mr. Levine.

Mr. Jack J Levine: Yes sir.

Justice William J. Brennan: 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?

Mr. 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).

Justice William J. Brennan: 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?

Mr. Jack J Levine: In the absence -- I would say that that’s probably what would happen.

Yes sir.

Justice William J. Brennan: And then you would not have been here?

Mr. 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).

Justice William J. Brennan: Well now, the Government tells us here, it does what perhaps it should have done in the District Court.

Mr. 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).

Justice William J. Brennan: 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?

Justice 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.

Mr. Jack J Levine: I’m sorry Your honor, I didn’t follow that.

Justice 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.

Mr. Jack J Levine: Yes sir.

Chief Justice 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 --?

Mr. Jack J Levine: Yes sir, and that’s what's happening every [Voice Overlap].

Justice William J. Brennan: Well, she's been adjudged in contempt.

Mr. Jack J Levine: Well yes sir and [Voice Overlap].

Justice William J. Brennan: 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?

Mr. 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 --

Justice William J. Brennan: 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?

Mr. Jack J Levine: You mean with that [Voice Overlap].

Justice William J. Brennan: Back to the 5315

Mr. 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?”

Justice William J. Brennan: That’s what I’m suggesting.

Mr. Jack J Levine: Yes sir.

Justice William J. Brennan: And we vacate the precedent outstanding adjudication of contempt to give her that opportunity.

Mr. Jack J Levine: Yes sir.

Justice Byron R. White: (Inaudible)

Mr. 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.

Chief Justice Warren E. Burger: But if we decided, we’re deciding something of a hypothetical case, are we not?

Mr. Jack J Levine: Well not on the record before the Court.

Justice Byron R. White: Well, it is now.

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

Mr. Jack J Levine: Well, first of all, the Solicitor General is not the person that (Voice Overlap)

Justice 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.

Justice William J. Brennan: Even though nothing had been done in that time below?

Mr. 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.

Justice 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.

Mr. Jack J Levine: Yes sir.

Justice 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.

Mr. Jack J Levine: Yes sir, the issue [Voice Overlap].

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

Mr. Jack J Levine: Well, regardless of what happens one way or another, the issue is going to be decided.

Justice Potter Stewart: Right.

Mr. Jack J Levine: It's decided adversely to us --

Justice William J. Brennan: Why?

I just don’t understand that.

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

Mr. Jack J Levine: That’s what I was (Voice Overlap)

Justice William J. Brennan: 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)

Mr. 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].

Justice William J. Brennan: That’s right.

Because nevertheless she won't appear to testify.

Mr. 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.

Chief Justice Warren E. Burger: Your time is up Mr. Levine.

Mr. Jack J Levine: Thank you sir.

Chief Justice Warren E. Burger: Mr. Friedman, we’ll go through and you have four minutes left.

Rebuttal of Friedman

Mr. 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.

Justice William J. Brennan: Which case now?

Mr. Friedman: This is in this case, in the Egan Case.

Chief Justice Warren E. Burger: 46?

Mr. 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)

Justice William J. Brennan: Well it’s already been vacated, the contempt?

Mr. 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.

Justice Byron R. White: Well, the Court of Appeals decided the question on the merit?

Mr. Friedman: That’s correct.

Justice Byron R. White: Without knowing whether there was electronic surveillance or not?

Mr. 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.

Justice Byron R. White: Right.

Chief Justice Warren E. Burger: Thank you, Gentleman.

The case is submitted.