UNITED STATES v. CACERES
Legal provision: Exclusionary Rule (admissibility of evidence allegedly in violation of the Fourth Amendment)
Argument of Kenneth S. Geller
Chief Justice Warren E. Burger: We'll hear arguments next in United States against Caceres.
Mr. Geller, I think you may proceed whenever you're ready.
Mr. Kenneth S. Geller: Thank you Mr. Chief Justice and may it please the Court.
This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
It presents the question whether a District Court may properly suppress probative and otherwise admissible evidence of a crime merely because the government agency failed to follow internal regulations that imposed duties upon it not required either by the constitution or by statute.
We contend that suppression is inappropriate remedy in such circumstances; especially where as in this case, the agency regulation at issue was not intended to grant enforceable rights to individual defendants.
The violation of the regulation was isolated and was not committed in bad faith and the defendant has been unable to demonstrate any prejudice as a result of the violation.
The facts of this case may be summarized as follows.
In January 1975, Agent Robert Yee of the Internal Revenue Service was ordered in respondent's individual and unemployment tax returns for the year 1971.
At the conclusion of a meeting between respondent and Agent Yee on January 27, 1975, respondent proposed the so-called personal settlement of his tax difficulties.
He offered Agent Yee a $1,000.00 if the agent would reduce his estimated tax liabilities by about one-third.
Agent Yee immediately reported this bribe offer to Inspector Hill of the IRS Internal Security Division.
At Hill's direction, Agent Yee called respondent on January the 30th and arranged the meeting for the following day at respondent's office.
During this meeting, respondent gave agent Yee a partial payment of $500.00 for settling the tax audit as respondent had earlier suggested.
Unbeknownst to respondent, this conversation was recorded by Agent Yee by means of a tape recorder concealed on the agent's person.
Agent Yee also met with respondent on February the 6th and February the 11th 1975.
At the February 6th meeting, respondent offered Agent Yee, an additional $2,000.00 to audit his 1973 and 1974 individual income tax returns to respondent's satisfaction.
And on February 11th, respondent gave Agent Yee $500.00 as the second installment for the favorable termination of the 1971 audit.
The February 6th and February 11th meetings were also secretly recorded by Agent Yee.
The respondent was subsequently indicted on three counts of bribery prior to the second trial on these charges.
He moved to suppress the three tape recordings on the ground that they have not been properly authorized under the applicable IRS internal regulations governing consensual monitoring of face-to-face conversations between agents and taxpayers.
Those regulations require that except in exigent circumstances advanced approval for such monitoring, must be obtained by the Director of the IRS Internal Security Division from appropriate officials in the Department of Justice.
The IRS man --
Chief Justice Warren E. Burger: Is this rendition applied to other types of monitoring or?
Mr. Kenneth S. Geller: There's a -- the regulation also applies to telephone monitoring but there are there are different authorization requirements there and they're not at issue in this case.
The approval of the Department of Justice is not required for telephone, consensual telephone monitoring, only for consensual face-to-face monitoring of conversations.
Chief Justice Warren E. Burger: Is there any history that explains the distinction between the two, the reasons for it?
Mr. Kenneth S. Geller: I think that the --
Chief Justice Warren E. Burger: Is it regarded as more offensive to have a microphone under your necktie than you'll tap the wires?
Mr. Kenneth S. Geller: Well, the sparse history that's available to explain the reasons for the adoption of these regulations does suggest, yes, that the Internal Revenue Service and the Attorney General thought it was marginally more intrusive of possible privacy rights to have face-to-face conversations recorded than telephone conversations.
The theory being that conversations over telephone are going through wires, through offices, and circuits and there's just less reasonable of an expectation that they're not being overheard.
Of course, consensual monitoring either by telephone or by face-to-face regulations as I'll get to face-to-face conversations doesn't implicate the either Fourth Amendment or any statute.
And the IRS manual also provides that when exigent circumstances are present, emergency authorization for consensual monitoring may be given by the Director of the IRS Internal Security Division acting alone.
Now, the facts in this case, show that on either January the 30th or January the 31st --
Chief Justice Warren E. Burger: Who is able to monitor and make a judgment of the exigent circumstances?
Mr. Kenneth S. Geller: It's a judgment --
Chief Justice Warren E. Burger: If IRS says this presents exigent circumstances, can anyone review that in the --
Mr. Kenneth S. Geller: I think the exigent circumstances that the regulations refer to are merely matter of time that's involved before the --
Chief Justice Warren E. Burger: But suppose the IRS makes that determination and the material is recorded then you get a case involving just the way this one goes.
Is the soundness and correctness of the determination if there were in fact exigent circumstances opened?
Mr. Kenneth S. Geller: Well, it's our position that the definition and interpretation of an internal regulation promulgated by an agency should be for that agency and that agency alone.
Now the lower courts in this case found that the emergency provisions of the IRS Manual were violated.
While we disagree with that conclusion, we haven't challenged it in this Court.
And this Court, this case reaches this Court on the assumption that the regulations were in fact violated.
The question is merely what the remedy should be.
Now, as I was saying the facts in this case show that after Agent Yee had arranged the January 31st meeting with respondent, but before that meeting took place, Inspector Hill applied for authorization to monitor the conversations between respondent and Agent Yee.
The request was transmitted to the IRS National Office here in Washington on January 31st but other county was not forwarded to the Justice Department until February the 7th.
As a result of this delay, the Director of the IRS Internal Security Division acting pursuant to the exigent circumstances provision of the IRS Manual gave emergency approval to record the January 31st and February 6th conversations between respondent and Agent Yee.
Justice William H. Rehnquist: Mr. Geller, let me go back a moment to follow up my question that Chief Justice asked you a moment ago.
Supposing that in a lower court case a statutory issue and a constitutional issue are both decided against the Government.
The Government decides to seek certiorari but seeks certiorari only on the constitutional issue.
Do you think that would be a proper attack for the (Inaudible) Office to take?
Mr. Kenneth S. Geller: Well, I hesitate to answer that question.
In the abstract, Mr. Justice Rehnquist, I think that properly both that the statutory issue should be resolved before the constitutional one.
Justice William H. Rehnquist: But you don't feel the same problem with respect to whether or not in this particular case, the agency regulation was violated and the more general question of whether or not what the remedy should be conceding as violated.
Mr. Kenneth S. Geller: We have not challenged in this Court that the regulation was violated.
I'm not aware what standards the Court would bring to resolve any question like that if the agency itself says that the regulation hasn't violated but that's part and parcel of the larger argument that we make here today that an agency regulation, the violation of a regulation standing alone does not give anyone any legal rights that are enforceable to court.
It's our position which I hope to elaborate on later the argument.
But only if the defendant is worse off by the promulgation and violation of an agency regulation then he would be if the agency had not promulgated the regulation at all, might it be appropriate for the court in construing the due process clause to grant some form of relief.
Now the Justice Department eventually approved the IRS consensual monitoring request on February the 10th and therefore the recording of the February 11th meeting was fully authorized in advance.
In full compliance with the IRS Manual and it's not an issue here.
Based on this evidence the District Court granted respondent's motion to suppress the recordings of the January 31st and February 6th meetings, the court found that no true exigency existed and that IRS agent said therefore violated the procedures in the IRS Manual by not obtaining approval from the Department of Justice.
The Government appealed the suppression ruling but the Court of Appeals affirmed.
I think it's important to begin on discussion of this case by asking a critical question that Court of Appeals never attempted to answer and that is, what is the source of the District Court's power to suppress the highly probative tape recordings of respondent's conversations with Agent Yee merely because of the violation of an internal government regulation?
First, there are several -- few answers to these questions seem reasonably clear.
First, the power can't be found in the regulation itself.
The IRS Manual doesn't contain an exclusionary rule and indeed it specifically provides for the wholly separate remedy of disciplinary action in appropriate cases against IRS agents who violate the manual.
It's also clear that the authority to suppress can't be found in the Fourth Amendment or in any federal statute.
This Court has said on a number of vacations that consensual recording of face-to-face conversations does not constitute a search or seizure within the meaning of the Fourth Amendment.
And Title III also specifically excludes consensual recordings by law enforcement officers from its provisions.
Finally, the Court of Appeals didn't purport to be ordering the suppression of evidence here as an exercise of its supervisory powers.
And hence, whatever the legitimacy of the court ever using its supervisory powers to exclude probative evidence in a criminal case because of an agency's violation of its own rules we have substantial data --
Unknown Speaker: What if the regulation had itself said that if it's violated there shall be -- the evidence shall be excluded?
Mr. Kenneth S. Geller: In that case we still think it would be up to the agency itself to decide whether or not to seek enforcement of hat provision as in fact it does in the Petite -- as the Department of Justice does in Petite policy cases.
Unknown Speaker: Yes.
Mr. Kenneth S. Geller: Or whether or not to in effect pro tanto repeal that provision we think the courts cannot step unless unconstitutional or statutory right of the defendant has been violated.
Justice William H. Rehnquist: When you say supervisory powers of the court, do you mean over the district court?
Mr. Kenneth S. Geller: I gather, the --
Justice William H. Rehnquist: Certainly, as the court's views as a supervisory power of an agency created by Congress?
Mr. Kenneth S. Geller: Well, I see the District Court would have supervisory power presumably the argument would go would have supervisory powers over an agency and the Court of Appeals would determine whether the District Court has --
Justice William H. Rehnquist: What if the District Court get any supervisory power unspecified by Congress over an agency?
Mr. Kenneth S. Geller: Justice Rehnquist, I don't want to be put in the position of defending supervisory powers of courts over executive branch agencies because the position of the --
Justice William H. Rehnquist: That isn't good for you.
Mr. Kenneth S. Geller: Well, we took the position in the Jacobs case last year that district courts don't have any broad undefined supervisory powers and that's still the position of the Justice Department.
Justice William H. Rehnquist: Well, but even the defendant's in the Jacobs case were just arguing that supervisory powers in the District Court or Court of Appeals extends to what shall be admitted as evidence in the District Court, might they?
Mr. Kenneth S. Geller: That's correct.
Although in the Jacobs' case, there was a question of how United States Attorney or Strike Force Attorney should act in a particular situation.
Well, that leaves us with the claim that respondent urges most strongly and that the Court of Appeals appears to have accepted which is that the power to exclude the tape recordings flows from the due process clause of the Fifth Amendment.
As we understand respondent's argument, he says that as a matter of constitutional due process, every agency must promulgate internal regulations restricting the unfettered discretion of its employees.
Every agent, every employee must abide by the regulations of his agency.
In every violation of an internal regulation constitutes a deprivation of due process.
Key assertion is obviously the last one that is that any time an agency fails to comply with one of its mandatory guidelines.
The person with whom the agency is dealing has been denied due process.
The respondent relies for this assertion solely upon cases such as Accardi against Shaughnessy and Service against Dulles.
But as the Court pointed out last term in Board of Curators against Horowitz, that line of cases merely announces a rule of federal administrative law not a principle of constitutional law applicable in non-adjudicated context.
And these decisions certainly didn't equate every violation of an agency's regulation whether violation of the Fifth Amendment.
Indeed, Sullivan against the United States in 348 U.S. was decided only a few months after Accardi.
Yet the Court failed to mention Accardi in denying the defendant's motion to dismiss an indictment in that case because of the violation of an internal agency procedure.
I should make clear that we certainly don't dispute that there may be circumstances where the Government's failure to follow procedures outlined in its internal regulations might operate to treat a particular defendant unfairly.
It might cause the defendant demonstrable harm.
And that conceivably may also be circumstances in which the magnitude of the unfairness by the Government and the harm to the defendant might be sufficiently substantial to constitute a due process violation that would entitle a defendant to judicial relief.
One situation might, for example might be if a defendant reasonably relied on the existence of an internal government regulation and was then prejudiced by the Government's unjustified refusal to follow that regulation.
Another might be if the government agent decided not to follow his agency's regulations in a particular case because of some invidious reasons such as a defendant's race or religion.
But in our view, if there are circumstances such as this in which the defendant would be entitled to judicial relief.
The relief would be based on the due process violation and not on the violation of the internal agency regulation.
Due process, we believe, cannot be violated by a mere agency violation of its own rules.
Defendant is no worse off from a violation of an internal regulation standing alone than it would be if the agency had never adopted the internal regulation in the first place.
Hence, the existence of and failure to follow an internal agency regulation in our view is that most only of evidentiary significance.
But one factor among many that must be considered in weighing the defendant's due process claim.
Now, we've identified in our brief a number of the factors that we believe must be looked at to determine whether a particular defendant has been deprived of due process.
The essential question of course is whether the Government's conduct is falling below a standard of essential fairness that the Court should not tolerate it.
It is as the Court defined due process in Russell case whether the activity of government law enforcement agents was repugnant to the American criminal justice system so outrageous that the Government should be barred from invoking traditional processes to obtain a conviction.
We think that the facts of this case demonstrate quite clearly that defendant was not treated unfairly in any way by Inspector Hill's failure to comply fully with the authorization provisions of the IRS Manual.
Indeed, respondent really makes no effort in his brief to dispute that contention.
For one thing, respondent's conduct could not have been affected in anyway by Inspector Hill's non-compliance with the IRS regulations.
Respondent didn't know that his conversations with Agent Hill were being -- Agent Yee's, excuse me, were being recorded.
Justice John Paul Stevens: Mr. Geller, could I interrupt just two thoughts?
One, you say it couldn't have been heard.
Maybe he would have turned down if he followed the procedure and there wouldn't have been any monitoring, isn't that a possibility?
Mr. Kenneth S. Geller: It's not a possibility in this case and I hope to get to in just a moment.
But even if it were turned down, our position would still be that the defendant is no worse off than if the regulations hadn't been promulgated in the first place.
Justice John Paul Stevens: Well then in that point before you get through.
You make some comments in Vitarelli against Seaton where the man was discharged he would have been no worse off if they didn't have all these procedures just to get him terminated.
Mr. Kenneth S. Geller: Yes.
Well, I think that Vitarelli against Seaton just like Accardi against Shaughnessy and Service against Dulles, that line of cases.
We don't attack the decision in those lines of cases.
In this case, those are adjudicated cases and I think that the courts were announcing rules of administrative law and not due process.
I think what we're dealing with here in this type of case in the Leahey, Heffner, Sourapas lines of cases are judicial scrutiny of internal government regulations in connection with prosecute or law enforcement decision-making.
And I thinking that the one, the due process standard that the courts announced in overseeing law enforcement techniques is much, much lower standard.
The standard I articulated a moment ago whether the Government's conduct is so outrageous that the court should not allow judicial processes to be in foc -- to obtain a conviction.
We -- there are many facets obviously to the question of, must agencies follow their own rules and we're only concerned here with the small facet of the question that involves criminal investigative of prosecute of policies and whether either the dismissal of criminal charges or the suppression of evidence in the criminal case is an appropriate remedy for those types of violations.
Chief Justice Warren E. Burger: And Vitarelli was dismissal from government service was it not?
Mr. Kenneth S. Geller: Yes, yes it was.
Now, respondent as I was saying didn't know that his conversations with Agent Yee were being recorded and he certainly didn't know that they were being recorded without Justice Department approval.
In his incriminating statements to Agent Yee in the January 31st and the February 6th meetings wouldn't have varied in any respect if Inspector Hill have applied for and obtained monitoring authority pursuant to the routine rather than the emergency provisions of the IRS Manual as the District Court insisted he should have done.
And by the same token, in connection with the question asked by Mr. Justice Stevens, there was no prejudice to respondent because if the IRS Manual had been fully complied with, it's absolutely no question on this record that the Department of Justice would have authorize Agent Yee to record his conversations with respondent.
This is not a case in which the law enforcement technique of consensual monitoring was only of marginal utility for obvious reasons, instances of attempted bribery by IRS agents.
It has always been considered to be among the most justified uses of consensual recording equipment under the IRS regulations.
Indeed, as I mentioned earlier, the Assistant Attorney General actually approved the monitoring of the February 11th meeting in advance with the knowledge that on two prior occasions earlier that week, the IRS had engaged in consensual monitoring of respondent's conversations pursuant to the emergency exception to the IRS Manual.
In fact there had been an incident in March of 1974 in which respondent also made a statement to Agent Yee that could have been construed as a bribe offer and at that time, Agent Yee also reported this to the Internal Security Division which had sought approval from the Department of Justice to monitor face-to-face conversations between Agent Yee and back in March of 1974, the Justice Department had also grant an approval and had in fact, I think, extended that approval for five consecutive months so there's no question that this is a case in which the Justice Department would have granted approval pursuant to the IRS Manual and the Attorney General's Memorandum.
We therefore have a situation here in which the IRS has failed to comply precisely with its Internal Regulations, didn't treat the defendant unfairly in any way, didn't --
Justice John Paul Stevens: Mr. Geller, on that point about certainty of approval, supposing we had a case in which it somewhat uncertain.
Whether they would have approved it, would you make a different argument?
Mr. Kenneth S. Geller: I'd make the same argument although if the argument -- if my same argument would be rejected then it would have to, I soon reach the question of prejudice to the defendant.
We don't think that you have to even reach the question of --
Justice John Paul Stevens: Well, there would always be prejudice I suppose if they got some recordings that they would not otherwise have gotten and they were material to the material level.
Mr. Kenneth S. Geller: Well, I think don't think that's what we mean by prejudice in the due process since because --
Justice John Paul Stevens: So you mean there's no unfairness, is it?
Mr. Kenneth S. Geller: There's no unfairness because as I've said earlier, we think the inquiry is the defendant any worse off than he would have been if the regulations had not been promulgated in the first place.
Justice John Paul Stevens: It's your position -- I just want to get it straight in my mind.
Your position really is that that even if he would have been worse off, the violation of department regulation of this kind shouldn't justify the application in exclusionary rule?
Mr. Kenneth S. Geller: That's correct.
We don't think there's been a due process.
Justice John Paul Stevens: I think that's your broad position.
Mr. Kenneth S. Geller: That is my broad --
Justice John Paul Stevens: (Voice Overlap) decide each case on whether we think they might or might not have gotten approval otherwise, it's kind of -- kind of a tough case.
Mr. Kenneth S. Geller: I don't think the Court need to reach that in this case because I think our broader proposition is correct.
We're dealing here now with a regulation.
It doesn't provide any remedy for an aggrieved defendant and indeed as we show in our opening and reply briefs wasn't even primarily intended for his benefit.
Finally, there's no finding by either court below of bad faith on the part of any of the IRS agents.
We submit that in these circumstances, there's no conceivable basis on which to find that the Government's conduct treated respondent unfairly much less deprived him of due process.
And that accordingly, the District Court was powerless to order the suppression of the tape recordings.
I'd like to touch briefly on one more point before my time expires.
The conclusion of some lower courts that the violation of an agency regulation alone should entitle a defendant to the suppression of evidence with the dismissal of criminal charges is premised to a large extent on the notion that regardless of the absence of harm to the particular defendant.
Relief must be ordered in order to give agency an incentive to follow their agency's rules.
I think that this notion is misguided for the reasons that were stated by Judge Friendly in the Leonard case in 524 F.2d.
Executive branch agencies has substantial incentives wholly apart from any penalties imposed by the courts to ensure their own procedures are substantially observed.
Executive branch agencies, presumably adopted the particular procedure which were not, which was not imposed by the constitution or by statute because it benefited the agency in some substantial significant way.
The same factors that cause the agency to adopt the internal procedures should compel the agency and see that they're obeyed.
Even if suppression would have some marginal deterrent effect however would be far outweighed in our view by the harmful consequences that would inevitably be produced by the exclusion of the evidence.
Inherent in the voluntary adoption by the executive branch of internal guidelines is the expectation that the interpretation and enforcement of those guidelines will be left to the executive branch.
If judicial sanctions are going to be imposed solely for violations of voluntarily adopted internal guidelines, the wisdom of adopting those practices in the first place would obviously have to be reexamined.
Therefore, suppression would really punish society twice.
First, the probative evidence of criminal activity would be excluded and criminal prosecutions would be impeded.
And secondly, the Government would be dissuaded from adopting a great many beneficial rules and practices that go beyond what the Constitution or statute may require.
Thus, at the time when the Court of Appeals candidly conceded there has been a growing disenchantment with the exclusionary rule we submit that it would be exceedingly unwise to extend the remedy of suppression to the situation such as this one whether constitution and federal statutes were fully complied with and there was at most an inconsequential violation of internal agency regulation.
Chief Justice Warren E. Burger: Are any of the cases cited relied on why the respondent to your criminal prosecutions?
Mr. Kenneth S. Geller: The only case that there's a criminal prosecution was the Yellin case which was a prosecution for criminal contempt of Congress.
The Yellin case is in many ways a peculiar case the Court didn't really explain what the source of the power was.
It was exercising in reversing that conviction although there were two threads that seem to run through the argument.
One is that there might have been some reliance interest on the part of Mr. Yellin and we agree that if there has in fact been reliance interest created by a regulation there may well be a due process violation if that regulation is violated.
And secondly, there was some notion in Yellin that it's not fair to prosecute someone for contempt of Congress if they are to comply with the rules of Congress when Congress itself hasn't followed its own rules.
But the Yellin case is the only case I'm aware of on which respondent relies.
Chief Justice Warren E. Burger: But if I recall the opinion in the Vitarelli case correctly, was there not some announces by the Court of the use to contention which was referred to that the employees in the governments have the reasonable expectation that the procedures will be followed because the -- know what the procedures are?
Mr. Kenneth S. Geller: That that's correct.
Chief Justice Warren E. Burger: Just as they would with reference to a civil service statute?
Mr. Kenneth S. Geller: Yes, there was -- there was -- the Court did refer to that of course just repeat Vitarelli like Service against Dulles and Accardi were admitted adjudicative cases, administrative law cases and of course even in that context, there has to be some finding that a particular regular was for the benefit of the person who seeks to challenged its violation and I think that's what the Court was referring to in Vitarelli.
Chief Justice Warren E. Burger: And in Accardi also?
Mr. Kenneth S. Geller: In Accardi and in Service against Dulles.
Chief Justice Warren E. Burger: That this internal procedures for the administrative hearings were made for the benefit of that category or class of people.
Mr. Kenneth S. Geller: Precisely and of course in those cases, all that happen, all that the Court ordered was a remand for a new hearing at which these procedures would be complied with here of course the remedy ordered by the District Court and affirmed by the Court of Appeals.
Justice John Paul Stevens: Well no, that's not right in Vitarelli.
He ordered -- the court ordered reinstatement in --
Mr. Kenneth S. Geller: But I believe the court also mentioned that this would not preclude the Government from immediately discharging Vitarelli and the proper procedures.
Justice John Paul Stevens: The procedures are totally unnecessary for the employee or just when they charge him with the particular violation, they may come in a sympathy and the like.
Mr. Kenneth S. Geller: That's correct.
Argument of James J. Brosnahan
Chief Justice Warren E. Burger: Mr. Brosnahan.
Mr. James J. Brosnahan: Mr. Chief Justice and --
Chief Justice Warren E. Burger: You may elevate that lectern if you'd like.
Mr. James J. Brosnahan: No.
Chief Justice Warren E. Burger: I appreciate the (Inaudible) on the side.
Mr. James J. Brosnahan: Looks like I might make coffee with it, I'm not sure.
Unknown Speaker: We do it frequently.
Mr. James J. Brosnahan: Mr. Chief Justice and may it please the Court.
We see the case before you differently and I'd like to state what we think the issue is.
In the case where there is a mandatory published regulation by agencies of the federal government which has been approved on a nationwide basis for the protection of fundamental interest of citizens.
Where that regulation is violated, where that violation is delivered, and where the evidence obtained after the violation is sought to be introduced in a federal district court in a criminal case.
Should that evidence be suppressed because as we alleged it will deter a federal agents from committing future violation.
There's been a lot of briefing in the case and I thought I would start by stating what we think the issue is and then saying at the outset that we believe that we can support each element of that standard in this particular case.
Chief Justice Warren E. Burger: Do you suggest Mr. Brosnahan that your client here conducted himself in reliance on the existence of this regulation in the sense for example that Vitarelli did in the -- in his case?
Mr. James J. Brosnahan: Mr. Chief Justice, only in this sense that as a citizen, one of many, one of millions and I don't mean to say to the Court to those are mental state in the doctor's mind that he focused on as clearly he didn't but there are many other cases where clearly it was true too.
But as a general sense of a citizen from 1965, he had the right to believe that no one would ever electronically record or transmit what he was saying even to a federal agent unless the Attorney General of the United States or somebody designated by the Attorney General had approved it before.
Chief Justice Warren E. Burger: Then you're saying that he had a legitimate or reasonable expectation of having a private conversation when he offered this bribe?
Mr. James J. Brosnahan: We say, first there's been no conviction of course.
There was a hang jury and no jury has ever found Dr. Caceres guilty and he's presumed innocent.
But aside from that, we believe that from at least 1967, every one in the country including the Attorney General and the Commission of Internal Revenue Service and other high officials responsible for the passage of this regulation had the right to assume that there would be no such electronic surveillance.
And Dr. Caceres is one of many that would be in that state of mind.
I also would say at the outset that it seems to me troublesome that the Gove --
Justice Thurgood Marshall: What difference does it make to the point involved as to whether the approval of the Attorney General would have or not?
Mr. James J. Brosnahan: We will --
Justice Thurgood Marshall: How would he know that?
Mr. James J. Brosnahan: Well, he would not know that.
Justice Thurgood Marshall: So what difference does it make to him whether it was or was not?
Mr. James J. Brosnahan: Precisely because the type of instrument being used is secretive.
The fact that he would never know it is a greater reason for insisting on the projection of prior approval.
Justice Thurgood Marshall: But he couldn't stop it?
The only thing you insisted on is that he should have gotten approval with the Attorney General.
Mr. James J. Brosnahan: Well, --
Justice Thurgood Marshall: Isn't' that pure show?
Mr. James J. Brosnahan: I think -- I think what I was about to say Justice Marshall is this.
The Government argues in this case that to succeed the defendant must show personal reliance and harm.
That to me is an inconsistent way to go out --
Justice Thurgood Marshall: But that's not my question.
Mr. James J. Brosnahan: No.
Well, I was going to say that the regulatory scheme and I think this is responsive to your question.
The regulatory scheme is set up in such a way that surreptitious monitoring which no one knows is going on except the agents who are doing it, by its very nature, will not occur unless the Attorney General or someone designated has previously approved it.
And Dr. Caceres or myself or any person have the right to go through the country and talk to a federal agent and believe that there would be no monitoring unless that approval is obtained.
Justice Thurgood Marshall: And if it would not obtain, it would not be used?
We have assumed that?
Mr. James J. Brosnahan: We know that.
Justice Thurgood Marshall: Well how do you know that?
Mr. James J. Brosnahan: Because --
Justice Thurgood Marshall: It was used in this case?
Mr. James J. Brosnahan: Well, because if the approval is not obtained --
Justice Thurgood Marshall: Well is it true it as from now on people can't rely?
Mr. James J. Brosnahan: Well, I would say based on the audit that was done in 1974 and based on what's shown in this case and particularly if this Court would hold if its alright to used it in a criminal case that the public's perception whether that regulation is worth protection or not would be that if you can't rely on it and you are not going to know when you're --
Justice Thurgood Marshall: I don't see how?
My one point is --
Mr. James J. Brosnahan: Yes.
Justice Thurgood Marshall: I don't see what benefit or wrong it is to the party involved as to whether or not the Attorney General had approved the bugging?
Mr. James J. Brosnahan: I would say for this reason.
Justice Thurgood Marshall: That's what I'm listening to.
Mr. James J. Brosnahan: Alright.
I would say for this reason.
By the very nature that it's the Attorney General, the regulatory scheme when it was passed imagined that the high official would exercise very careful discussion.
Justice Thurgood Marshall: Did it say the Attorney General himself?
Mr. James J. Brosnahan: Or his designee and that was the --
Justice Thurgood Marshall: I thought this is what it say.
Mr. James J. Brosnahan: I've always used those terms together because that's what it said from the beginning and it was for a long time the Deputy Attorney General is only the number two person in the department that could do it if he Attorney General didn't do it.
We argue from that in the legislative history and I defer in my point of view fro my colleague Mr. Geller on this is not sparse.
The record that we have shown shows that the President of the United States, the Attorney General of the United States and the Commission of Internal Revenue all said that from 1965 on there would be a high official that would review this kind of electronic surveillance.
And that was because it would be approved in limited cases and Attorney General Levi and I think this is helpful, in 1960 and 1975, I went to Congress, delivered the statement which is in our appendix dealing primarily with foreign problems.
But in that the Attorney General said and surely believed it that these regulations were such that great time was taken by his office to review it to ensure that there would be no violation of private rights that it was always done in advance and that the Congress couldn't rely on that.
Justice Thurgood Marshall: But he didn't do that in 1965?
Mr. James J. Brosnahan: 1975, I misspoke.
Justice Thurgood Marshall: It was started in 1965.
Mr. James J. Brosnahan: In 1965 it was started and when it was started it was traumatic and I must say that I disagree with the Government's view of this.
It was discussed at the presidential level.
Justice Thurgood Marshall: It wasn't exactly discussed it was handed down by the President.
Mr. James J. Brosnahan: It was handed down and in the White case in the appendix there is a quotation from President Johnson in which he said that he would see to it, he asked if the agencies look at this because it involved very important rights.
Justice John Paul Stevens: But none of those statements said anything about asking for court help and enforcing the regulation or in disciplining people who violated it.
Mr. James J. Brosnahan: Actually, the statement by Commissioner Cohen attached to the Government's reply brief did refer at least in passing to suppression of evidence.
Justice John Paul Stevens: The Attorney General Levi statement did not or did it?
Mr. James J. Brosnahan: He did not address the question of suppression.
Justice John Paul Stevens: Of remedy --
Mr. James J. Brosnahan: That we say is for this Court and for the Court's to deal with.
Chief Justice Warren E. Burger: We'll resume at that point at 10 o'clock in the morning.
Mr. James J. Brosnahan: Thank you.