Cases by Issue - Crime Control Act

United States v. Ojeda Rios - Oral Argument

Fri, 09 Jan 2009 14:49:22 +0000

Case:

United States v. Ojeda Rios

Media File:

89-61_19900228-argument.mp3

Related Transcript:

1989_89_61_argument.xml

Transcript:

Argument of William C. Bryson

Chief Justice Rehnquist: We'll hear argument next in No. 89-61, United States against Filiberto Ojeda Rios.

Mr. Bryson.

Mr. Bryson: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the federal wiretapping statute, and in particular, the provision of that statute that deals with the requirement that at the termination of interceptions or extensions thereof, a judge must seal the wiretap... the products of the wiretap or oral interceptions.

I'll use the term "wiretap", if I may, just as a shorthand to cover both wiretaps and oral interceptions.

The case arose from a lengthy 16-month wiretap investigation in Puerto Rico, where a total of about a thousand, somewhat in excess of a thousand, tapes were generated in the course of the investigation.

When the prosecution was initiated in Connecticut, the defendants moved to suppress the wiretap evidence on a large number of grounds.

The district court denied the vast bulk of those grounds, but granted the suppression motion in part with respect to two groups of tapes on one ground.

And that ground was that the tapes with... those two sets of tapes had not been sealed quickly enough after the termination of the interceptions and the extensions, as the district court construed the term 2518(8)(a) of the wiretap statute.

Unknown Speaker: Mr. Bryson, the offense occurred in 1983?

Mr. Bryson: That's right, Your Honor.

Unknown Speaker: And has the defendant ever been brought to trial?

Mr. Bryson: Well, a number of the defendants have been brought to trial.

The ones who are before the Court here are the ones that were severed out at the time of the... or following the loss of the evidence from suppression because these were the defendants as to whom that evidence was deemed to be essential.

There were a number of other defendants who have already been tried and most of them have been convicted.

One was acquitted.

Unknown Speaker: But, at least, Mr. Ojeda Rios has never been tried?

Mr. Bryson: That's right.

That's right.

He... he remains at large--

Unknown Speaker: And you... you take the position that the Speedy Trial Act does not preclude trial at this junction?

Mr. Bryson: --Oh, that's right, Your Honor, because we have... there has been ongoing litigation on this issue ever since.

There's never been a point in which nothing was going on.

In fact, this case has had an enormous amount of activity all the way through.

Unknown Speaker: The statutory provision under which the exclusion was made says basically that the presence of the seal--

Mr. Bryson: That's right.

Unknown Speaker: --provided for by this subsection.

That's the language used.

Mr. Bryson: That's right.

Unknown Speaker: Doesn't that phrase have the effect of incorporating the timing requirement provided for in this subsection?

Mr. Bryson: We don't think so, Your Honor.

Let me move to that argument.

Unknown Speaker: It certainly could be said to do so.

I mean, I am concerned with the language of the provision itself.

Mr. Bryson: As are we, and it could be said to... to do so, and the Second Circuit, the First Circuit and the D.C. Circuit have concluded that that is the proper reading of the statute.

We think it's a very unnatural reading of the statute which isn't supported either by the plain language of the statute, by its legislative history or really by the purposes of the statute.

And let me turn to that, if I may, right now.

The language, as you say, is the presence of the seal provided for by this subsection.

Our view is that means the judicial seal, the seal that a judge must put on the tapes at the time that the tapes are... are sealed.

Now, the... it then says, or a satisfactory explanation for the absence thereof.

Now, the purpose--

Unknown Speaker: Do we have a judicial seal?

I never had a judicial seal.

Do we get issued these things?

I didn't have one.

Mr. Bryson: --No, Your Honor--

[Laughter]

Unknown Speaker: Just district judges have them maybe, huh?

Mr. Bryson: District judges are--

Unknown Speaker: I always wanted one, you know.

You know, you could put a red--

[Laughter]

Mr. Bryson: --It... this is I think... it may not be exclusive to this statute--

Unknown Speaker: Yeah.

Mr. Bryson: --but it certainly is unusual to have courts involved in sealing evidence.

But basically it's the same thing as the seal that any one uses in the... in the context of establishing chain of custody.

You take a piece of evidence tape and you wrap it around the box and you've sealed it.

You put your initials on it and it's a judicial seal.

So, it's nothing really more complicated than that.

The judge can vary the procedure if he likes, but basically that's the process.

Now, if Congress had met... Congress is using the words presence and absence of the seal.

Now, presence and absence suggests that if you look for it and you say it's absent, nothing's there.

In fact, the argument that the defendants are making is that, well, this... what's absent is a timely imposed seal, a timely affixed seal, which is a very awkward way to put the point,--

Congress, if they had wanted to deal with both delay and absence, could have easily said a seal not timely affixed... or delay or absence.

But they said absence.

What's more, the... if you look at other applications of the same principle that they... they argue for, it demonstrates, I think, how strange the language is to... to import so much... to put so much weight on the phrase "provided for by this subsection".

Unknown Speaker: Well, in your view, there would be no remedy for an unexcused delay in sealing?

Mr. Bryson: Well, certainly Section 2518(a)... (8)(a) would not provide an exclusionary principle.

That's right.

Now, of course, delays in sealing can result in making the burden of authentication more difficult if in fact, as in this case, the claim is made that there was tampering with the tapes and the government has to come in and rebut by clear and convincing evidence any claim of tampering.

That's what we did.

Unknown Speaker: Well, Congress may have intended some kind of prophylactic remedy here in the sense that if a... if a seal is provided immediately, you're just going to eliminate the risk of much tampering.

Mr. Bryson: There is no doubt that they intended the immediate sealing to do exactly that, Your Honor.

They have... they had a ruling that the evidence is clear from the legislative history... they said, we want to avoid arguments on this point, we want you to seal it immediately.

But the question is what happens if you don't.

And we submit that Congress did not say that any time you don't seal immediately, that's the end of the matter.

And no court has so held.

The rule does not apply across the board.

What Congress is saying is, look, seal immediately.

If you... if you have not sealed and if there's no seal there, we'll... we'll have one narrow provision in which you will not be... simply not be allowed to argue that the tapes should be admitted and that is where you don't have either a seal or a satisfactory explanation for a seal.

Unknown Speaker: Mr. Bryson, I assume that if you... if you don't do it right away, the district judge... you run the risk of the district judge saying, I'm sorry it's too late.

Mr. Bryson: Of course.

Unknown Speaker: Right?

Mr. Bryson: That's right.

Unknown Speaker: So it... it isn't a sure thing that there's no harm in... in not... in not doing it immediately.

Mr. Bryson: That's right and... and--

Unknown Speaker: You were lucky here, though, he... he did approve them.

Mr. Bryson: --He did approve it because this was... these were both (a) relatively short delays.

It wasn't the case of a seal which was imposed two days before trial.

The parade of horribles that defendants--

Unknown Speaker: Yeah, but what if it was?

What if it was?

What if a judge said... you did... just like marking exhibit, you ought to mark your exhibit before you hand it to... up for evidence.

You didn't get the seal on these; here, you'd better seal it right now.

Mr. Bryson: --Well, if the judge is willing to seal it under those circumstances--

Unknown Speaker: And that would make it admissible.

Mr. Bryson: --our position would be the statute would fall out.

It wouldn't be applicable.

Unknown Speaker: So it's entirely up to the judge to... to let anything in of this kind he wants to?

Mr. Bryson: Well, under 2518(8)(a) that's... that's... that's true.

Now, it may be--

Unknown Speaker: Well, also under the other... it doesn't violate the other section.

Mr. Bryson: --No.

But it would have to... we would nonetheless still have to establish the authenticity of the--

Unknown Speaker: Well, maybe the judge says, well, I don't think the government agents aren't going to use phoney evidence.

I don't even have to look at this.

I'll presume they were fair.

Mr. Bryson: --Well, if... if the judge did that, I suspect, depending on the strength of the... of the allegations--

Unknown Speaker: Well, it would comply with statute.

It would comply with the statute under your reading.

Mr. Bryson: --Well, that's right.

But we would still have to establish authenticity under the Federal rules and under the rules set forth by the courts with respect to tape-recorded evidence, which is a... a significant burden.

It's just that this particular provision would not bar--

Unknown Speaker: This particular provision would be totally meaningless.

Mr. Bryson: --Well, it would be inapplicable.

I think not meaningless.

It... it would not... simply wouldn't apply to that set of facts.

Unknown Speaker: It would not impose any burden at all if the judge was willing to seal it.

Mr. Bryson: That's right.

Unknown Speaker: Yeah.

Mr. Bryson: That's right.

That... we would still have the burden, of course, in the sense of we would have not complied with the immediate sealing requirement.

And we would be subject, for example, to contempt, which is found in 2518(8)(c)... any violation of the subsection is subject to contempt... so the prosecutor--

Unknown Speaker: When the judge is willing to seal it he doesn't have to hold you in contempt.

Mr. Bryson: --Well, that may be, although it's not clear that--

Unknown Speaker: Let me ask you another question.

How does someone challenging authenticity go about proving it?

I mean, say you have custody of tape for three or four months and you get somebody on the witness stand that says, I don't know anything that ever happened, it was sitting in the drawer all the time.

How can anybody ever challenge that testimony?

Mr. Bryson: --How... how can they challenge the authenticity of the tapes?

Unknown Speaker: Yeah.

Mr. Bryson: Well, they... they made the statements on the tapes.

If they say, you have got stuff on that tape that I never said, I have no involvement with this robbery, I never said anything about Wells Fargo, I'm a complete stranger to this thing, and there's my voice saying in a spliced form that I did this.

I'm going to challenge that, number one, by showing that there is no valid chain of custody and, number two, I'm going to bring my expert in and I'm going show that those words were stuck together like the pieces cut out of the newspaper in effect and stuck on the tape.

That's the way it happens.

The person whose voice is intercepted is in a good position to know if he said those things.

And--

Unknown Speaker: And that same... that same process would... would transpire whether it was sealed or not, presumably.

Mr. Bryson: --That's right.

Unknown Speaker: I mean, you could make the same argument.

Mr. Bryson: That's right.

That's right.

The seal is an aid in that it establishes a better chain of custody than if there was no seal.

What it does is... and the reason that it is really welcome to the government, is something the government has an incentive to put on... is that it takes care of everything from the moment that seal is... is put on, when the judge puts it on, to the moment of trial.

Because when the judge rips the seal off and it's still intact, assuming somebody hasn't really gone wild and gone out and gotten the seal off, steamed it off or something and replaced it... you always take that risk.

But basically you have a very solid chain of custody.

Unknown Speaker: As a practical matter, once the tapes have been sealed and the government wants to have access to them to prepare for trial, what do they do, make copies?

Mr. Bryson: Well, they generally will have made copies in advance and they will be working from the copies.

Or if they haven't, they can go to the court--

Unknown Speaker: So you make a copy in advance of submitting it to seal?

Mr. Bryson: --Oh, yes, that's... that's not infrequent and the courts have approved that... that procedure.

Now... and in fact, in some courts there... there have been delays which have been accepted as satisfactory or explained delays based on the time taken to make copies.

The court can... the government can also go back to the district court, as the statute specifically provides, and ask for an order unsealing for a specific purpose and resealing so that there isn't any strict prohibition against going back and getting the tapes.

Unknown Speaker: But even if the tape is sealed, the government has to authenticate it, doesn't it?

Mr. Bryson: Oh, sure.

Absolutely.

It's just an easier process, of course.

Unknown Speaker: When you referred a moment ago to the... a clear and convincing standard of evidence, is that provided in the rules?

Mr. Bryson: No.

No.

That has... has developed in the courts of appeals and in the Second Circuit as a specific rule applicable to tape-recorded evidence.

Unknown Speaker: What's... what's the basis for that rule?

Mr. Bryson: There isn't any basis in the rule, Your Honor.

What it is... it's simply... the rationale is that tape-recorded evidence is hard to... it's hard to tell whether it's authentic or not and, therefore, we're going to put on the government a particularly high burden.

It's really created as a sort of common law evidentiary rule.

Now, if push came to shove, the question of whether Rule 901 compels that, I think probably not.

But that certainly is the rule that's followed by... by courts of appeals.

Unknown Speaker: Does that just go to the explanation for the absence of the seal or with respect to authenticity?

Mr. Bryson: With respect to authenticity.

Unknown Speaker: Only?

Mr. Bryson: Well, that's right.

That's right.

Unknown Speaker: Doesn't... doesn't Rule 901 provide the way things shall be authenticated?

Mr. Bryson: Yes, it does, and... and I think the better argument... I think those courts of appeals that have held clear and convincing evidence as a requirement may well be wrong, and that's not the issue before the Court.

In this case, the district court, following established Second Circuit precedent, found the tapes in question... or at least the tapes that he addressed... he didn't address all of the tapes... but the ones he did address, he found to be genuine by clear and convincing evidence following Second Circuit precedent.

Now, you... you could look at the legislative history as well and find that while it's not dispositive... this is not legislative history that simply solves the problem if it ever does... but the legislative history is, I think, instructive in that it... it... there is no reference, no suggestion that the Congress was trying to deal not only with the absence of a seal but also with delays in sealing.

Unknown Speaker: This seems to be our week for the dog that didn't bark legislative history.

This is another one.

I mean, your point is that there is nothing in there--

Mr. Bryson: Well, I can to a little--

Unknown Speaker: --that says that it should be excluded from that reason.

Mr. Bryson: --I can do a little better than that.

I think the dog not only didn't bark but he sort of licked at the hand of the master.

Unknown Speaker: Did he lick the hand?

Mr. Bryson: Yes.

Unknown Speaker: Okay, well--

[Laughter]

Mr. Bryson: In this case... let me just run through what... what we have.

The statute really had its origin in the task force report on organized crime in 1970... 67 of President Johnson's Commission on Law Enforcement and the Administration of Justice.

There was a draft statute in the appendix of that report which turns out to be very close to what ultimately became Title III.

And in particular, the draft provision that we're dealing... or the provision we're dealing with here was almost exactly word for word the draft provision that showed up in that report.

And the language used to describe that draft provision was... at page 103 of the report... was that after saying that the seals... the tapes should be sealed when the interception is terminated,

"The seals should be a prerequisite for admission unless the satisfactory showing could be made for its absence. "

The seal should be a prerequisite.

No reference to delay... just the seal.

Again, in the Senate report, we have,

"The presence of the seal, noted above, the judicial seal, is intended to be a prerequisite for use unless a satisfactory explanation can be made to the judge. "

Then in a statement on... that was put into the record prior to the enactment of Title III by Senator Scott, a shorthand description of the provisions of the bill said,

"Unless under seal or no satisfactory explanation of its absence, the information contained in such recording may not be used. "

Not only is there no hint of delay, but we're talking about unless the seal is there.

And there is no reference to the provided for language, which you would think would show up if they really were focusing on that language to trigger the requirement... to trigger the delay factor.

Now the respondents argue that there are policy reasons--

Unknown Speaker: But couldn't you also interpret that history as saying they're assuming the seal wouldn't be there unless it were put on immediately, as the statute requires?

Mr. Bryson: --Well, you... you could.

You could interpret it that way.

Unknown Speaker: And if you do interpret it that way, then it adds up to nothing.

Mr. Bryson: That's right.

Unknown Speaker: Yeah.

Mr. Bryson: If you interpret it that way.

My submission is not that this legislative history is a bell ringer and I can sit down.

But I think it's... it's helpful and I think it does a little more than say there is no reference to delay.

It... it suggests what we're talking about is a seal that's absent.

That's the language.

Unknown Speaker: Well, is there anything in the legislative history that suggests that there is any purpose for the seal other than to be sure that it was affixed in a timely manner?

Isn't that the only reason they wanted the seal is to get it on their right away?

Mr. Bryson: Well, they certainly wanted it on there right away but there is a reason for the seal whenever it goes on, which is that even if it's two weeks late or three weeks late or six weeks late, it... it cuts off the problem of... of risks of... of lack of authenticity from whatever point forward that it's put on.

In this case, for example,--

Unknown Speaker: So its... its only function is a temporal function, really.

I mean--

Mr. Bryson: --Well--

Unknown Speaker: --it's a different... a question of when it gets on is... is the only thing that has it serve any statutory purpose.

Mr. Bryson: --Well, its... its function is to establish authenticity.

It does that, depending on whenever it's put on with respect to timing.

That's true.

But it's function is--

Unknown Speaker: Well, it's to prevent any post-sealed questions of authenticity--

Mr. Bryson: --That's right.

Unknown Speaker: --from being raised.

Mr. Bryson: That's right.

Yeah.

Or at least make it harder.

And one could always claim again that somebody had steamed off the seal but--

Unknown Speaker: If it's put on the day before trial, it's no good, is it?

Mr. Bryson: --Well, Your Honor, it may well be no good.

Unknown Speaker: I mean, would it... would it serve any purpose?

Mr. Bryson: It would... certainly not.

It would serve no purpose.

I would think a judge being asked to put a seal on the day before trial would simply laugh at the person who walked into his or her office with that request.

Unknown Speaker: This [inaudible] involves time [inaudible]?

Mr. Bryson: Certainly.

In time... if you... if you come in on the day before the trial with a request for sealing--

Unknown Speaker: Did the Department of Justice take any position on this provision to the bill?

Mr. Bryson: --This was... this was not the administration's bill and, Your Honor, I can't tell you whether there was any objection.

I doubt it... I can't tell you, but I doubt it--

Unknown Speaker: I don't think it amounts to--

Mr. Bryson: --because it was not a provision that was at all controversial and it went right through all the versions of the statute.

The statute went through several versions and... this... this provision stayed unchanged throughout.

I don't remember in the department's commentary that there was any reference to it.

I believe not.

If I may, I'd like to turn to the question of whether, assuming that delays are covered, there was a satisfactory explanation, as the statute provides, in this case for the delay or, even assuming that satisfactory explanation means something like good cause, whether there was in fact good cause in this case for the delay.

Now, our position with respect to the satisfactory explanation requirement is that you must do the following.

You must give a credible explanation to a court of why there was a delay.

And the question is then, well, what more must you do?

We say that the more that's required turns on the interpretation of the word "satisfactory", which is a somewhat difficult term to handle.

It's not clear what it means.

You could interpret it to mean simply that an accurate description, a description that satisfies the court that this is an accurate description of what happened even if the... what happened was that the tapes got tampered with.

But we think it requires more than that.

In light of the purpose of the statute, we think that what it requires is that you explain to the satisfaction of the judge, that you... that the tapes have not been, in fact, tampered with, that they are pristine.

And once the judge can sit back and conclude that that's the condition of the tapes, then that constitutes a satisfactory explanation.

Now, this--

Unknown Speaker: --How different... how different is that than the sort of showing you'd put on simply to authenticate it?

Mr. Bryson: --It's... it's not very different.

It would be a very similar kind of showing.

Unknown Speaker: That's a... that's a very... let me understand what you're saying.

You're saying, assuming that you lose on the point that--

Mr. Bryson: Yes.

Unknown Speaker: --that the presence of a seal means the presence of a seal that was put on immediately... right?

Mr. Bryson: Right.

Unknown Speaker: --then all you have to do to establish a satisfactory explanation for the absence of a seal that was put on immediately is to show that this is nonetheless an authentic tape.

Mr. Bryson: Well, we have to have a credible explanation and that satisfies the explanation part.

And then the question is what does satisfactory mean.

And we submit that if the judge is persuaded by our... by our explanation that the tapes have not been tampered with... tinkered with... then that's satisfactory.

That's our interpretation.

Unknown Speaker: But what is the explanation, though?

It's very strange.

Mr. Bryson: In this particular case?

Unknown Speaker: Yeah.

Mr. Bryson: Oh, well, our explanation was there was one legal error made, arguably.

We'll concede for present purposes there was a legal error made.

The lawyer whose--

Unknown Speaker: I know, but you seem to say that all you have to do is to prove that the tapes are... haven't been tampered with.

Mr. Bryson: --Well, we have to... we have to show an explanation.

We came forward with an explanation.

Our explanation was we made a legal error, arguably, in interpreting the word "extension".

Unknown Speaker: And that's why you delayed.

Mr. Bryson: And that's why we delayed.

Now, the question is is that a satisfactory explanation.

Unknown Speaker: Yes.

Mr. Bryson: Now, it's satisfactory in one sense that it explains--

Unknown Speaker: I got you.

All right.

Mr. Bryson: --accurately, truthfully and with no doubt what happened.

There's no dispute about that.

Unknown Speaker: Well, what does the term "explanation" apply to?

Mr. Bryson: Well, it does applies to our coming forward and telling the judge why there was a detail... a delay in the sealing.

Unknown Speaker: In other... it's an explanation of the delay?

Mr. Bryson: That's right.

Unknown Speaker: Is that what your position is?

Mr. Bryson: That's right.

That's right.

Unknown Speaker: Gee, don't... don't you think satisfactory explanation must mean an explanation as to why the delay is excusable?

Mr. Bryson: Well, I... we think--

Unknown Speaker: I... I... nobody would read it that way.

Mr. Bryson: --It can be... in a sense it is because we say that it's excusable if--

Unknown Speaker: So long as you--

Mr. Bryson: --in fact it had no consequence in resulting in the alteration of the tapes--

Unknown Speaker: --No, no.

Mr. Bryson: --as opposed to being a good reason or a good cause.

Unknown Speaker: Do you think it's a satisfactory explanation if the department comes in and says, well, you know, we just... just didn't want to take it to this judge and we... and, yeah, we know we should have taken it in, but we just didn't want to do it?

Mr. Bryson: Well--

Unknown Speaker: We had an attorney general who didn't believe in this provision of the law and we decided not to take it in.

But we assure you it has not been tampered with.

Mr. Bryson: --Well, and--

Unknown Speaker: And that is a satisfactory explanation, as I understand you're... you're saying.

Mr. Bryson: --That's correct.

And the reason is because if the judge... that is the truthful explanation.

Now, an attorney may come in and say this attorney was a rogue attorney... this is not the case in this case... but some attorney, well, just decided not follow the statute, said to heck with the statute, I'm not going to follow it, I'm not going to seal, it's too much trouble.

And we come in and we explain that to the judge and we say this--

Unknown Speaker: Nobody is perfect.

Right--

Mr. Bryson: --it was a mistake to have... nope.

Well, not only is nobody perfect, but some people are just irresponsible.

And this was an irresponsible act.

That's our explanation.

Now, question: is this the satisfactory explanation?

We submit in light of the purposes of the statute, it is if we can further show that the tapes have not been tampered with.

This is a chain... essentially a chain of custody rule.

Suppose that we were dealing with nothing more than a rule that said establish chain of custody from place A through place Z or provide a satisfactory explanation for what's missing, we would--

Unknown Speaker: --Well, on that... on that basis you don't even... never... don't have to have it sealed at all.

Ever.

There's no reason to do it, you're saying, so long as it's authentic.

Who cares about a seal?

Mr. Bryson: --There is a very good reason for a seal.

Unknown Speaker: Well, I know, but you... but you would still have this satisfactory explanation if there wasn't a seal.

This is a--

Mr. Bryson: We would.

That's right.

Unknown Speaker: --Here's why we do... we just don't believe in seals, we never did, and we don't think there ought to be a seal on this tape.

Mr. Bryson: That is correct.

Unknown Speaker: That's... now, is it satisfactory?

Well, yes it is because the tapes are... haven't been tampered with.

Mr. Bryson: That's right.

But, of course, we'd have to go through a lengthy hearing, as we did in this case.

There's no incentive for us to do that.

If we did... if it did come to that, yes, I think that's right.

But the evidence--

Unknown Speaker: But as I understand it, you would have to go through the lengthy hearing in all cases to authenticate.

Mr. Bryson: --No, because I think what happens, Your Honor, is that if you have a chain of custody established in part with the aid of the seal, the judicial seal--

Unknown Speaker: Well, we're presuming there's no seal.

Mr. Bryson: --Well, in that case, you'd have to go through a long hearing in all likelihood, if there is any colorable showing made that anything may have happened to the tapes in the meantime.

That's right.

Unknown Speaker: Do you have a fall-back position?

Mr. Bryson: Yes, we do.

[Laughter]

Let me... let me move without further delay to the fall-back position.

Unknown Speaker: Mr. Bryson, before you... before you fall back, if we file an opinion agreeing with you, aren't we, in effect, amending that statute?

Mr. Bryson: No, Your Honor.

I don't think so.

I think that--

Unknown Speaker: Well, have... have we yet an explanation of why it wasn't done?

Mr. Bryson: --Yes, and I'm going to give you that... you haven't yet, but you're going get it right now.

I'm going to explain.

What happen was in this case is the attorney construed the term "extensions" to mean, any... if you're following a particular target through the series of wiretaps and you go from house A to house B to house C, then the wiretap at house B is an extension of the wiretap at house A and the wiretap at house C is an extension of the wiretap at house B.

That's the way he applied the term with respect to the key interceptions in this case.

He had a somewhat broader concept of extension in general in which he felt that any... any--

Unknown Speaker: Well, will you pardon me if I say I don't understand it?

Mr. Bryson: --Well, it may well be wrong--

Unknown Speaker: I mean, the statute says--

Mr. Bryson: --but that was his... that was his conclusion.

Unknown Speaker: --He read the statute.

The statute said put the seal on and he didn't put it on.

Mr. Bryson: Well, that's right.

That's right.

But he... the reason was because--

Unknown Speaker: So how does he explain that?

Mr. Bryson: --Because he didn't think it was necessary to put it on at that time because he felt that the extension--

Unknown Speaker: Well, it said so.

The statute said so.

Can't he read?

Mr. Bryson: --Well, that's... that's the question, Your Honor.

It's not clear that the statute meant that he had to put the seal on at the moment that the interceptions terminated because you can put the seal on after the extensions of the interceptions terminate.

And he construed the term "extensions" to apply to any of the related wiretaps in the same investigation, particularly, as in this case, when you are following a particular individual from place... place to place.

Unknown Speaker: Do you... do you interpret the term "extension" to modify the period... period of the order?

I mean, upon the--

Mr. Bryson: Order--

Unknown Speaker: --separation of the period of the order or extensions thereof.

Mr. Bryson: --I think it means order or extensions.

Not period, but order or extensions.

The district court found he acted in good faith.

He was negligent.

The district court thought it was a legal error and he shouldn't have made it, but that there was no intentional... he did not intentionally ignore the law or deliberately fail to seal.

It was the result of a misunderstanding and that the only basis on which the district court suppressed was that the delay was simply too long.

The court of appeals found that he had really disregarded the sensitive nature of the activities undertaken but still did not upset the district court's findings of good faith.

And in this case, we submit that because this was a single legal error which we think, in light of the Second Circuit cases such as Principie and Scafidi, was an understandable legal error, if it was an error, then there should not be exclusion in this case because it was satisfactorily explained.

I would like to reserve the rest of my time.

Unknown Speaker: Very well, Mr. Bryson.

Mr. Reeve.

Argument of Richard A. Reeve

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

Title III mandates that all electronic surveillance recordings are to be sealed immediately upon the expiration of each order or extensions thereof.

It is undisputed in this case, that the government violated that statutory mandate.

In addition to creating the requirement of an immediate seal, Congress, at the same time in the same subsection, created an independent prophylactic rule of exclusion.

That rule of exclusion does not contain a prejudice test as the government contends today before this Court.

In fact, the sole exception to that rule of exclusion is if the government provides a satisfactory explanation for the absence of that immediate seal.

None was provided in this case.

The courts below were correct in finding no satisfactory explanation and excluding the evidence.

Unknown Speaker: Well, the critical language doesn't say immediate seal, Mr. Reeve.

Mr. Reeve: Your Honor, it is not explicit in that way, but I--

Unknown Speaker: Well, it doesn't... it doesn't contain the word "immediate", does it?

Mr. Reeve: --It does not in that sentence of the provision.

Unknown Speaker: Yeah, that's... well, that's what I am asking.

Mr. Reeve: Yes, Your Honor, and I'd like to address that.

And I think that there are three questions that can reasonably be asked in construing this statute.

Number one, what did Congress say?

Number two, what did Congress not say?

And, number three, did Congress know how to create a prejudice test in a rule of exclusion if they desired to do so?

And I'd like to focus on the language of the statute, Your Honor, which is the question that you raised.

It is correct, and Justice O'Connor noted, that the language requires

"the presence of the seal provided for by this subsection. "

The language does not say the presence of a judicial seal or the presence of a seal.

It says that seal provided for by this subsection.

Unknown Speaker: Of course, because that is what they were talking about.

Mr. Reeve: Exactly right.

Unknown Speaker: They didn't want to say any seal in the world would suffice.

Mr. Reeve: That... well, that's--

Unknown Speaker: How else would they have said it if they just meant, you know, the kind of a seal we were talking about?

Not necessarily timely, but... but the seal that we have been talking about here.

Mr. Reeve: --Well, Your Honor, I think that... that... that it's clear when you look back, when you asked the question... what is the seal provided for by this subsection?

It is not just a judicial seal.

It is an immediate seal and there's no question about that.

In fact the government in its reply--

Unknown Speaker: But even so, the statute does go on, when it talks about the use of the evidence, to say that there must be a satisfactory explanation for the absence of a seal.

Mr. Reeve: --Well, Your Honor, it does although it doesn't--

Unknown Speaker: And you would read it as though it said a satisfactory explanation for noncompliance with the immediate sealing requirement.

Mr. Reeve: --Well, Your Honor, I respectively differ with the Court in... in terms of what the language is.

What is says is a satisfactory explanation for the absence thereof.

And the word "thereof" is used not just in that sentence but in the first sentence which is in question, where the statute says

"the period of the order or extensions thereof. "

And just as that thereof refers to the period of the order, in this case, a satisfactory explanation for the absence thereof refers to the seal as provided for by this subsection and, as I have previously discussed, the seal provided for by this subsection is an immediate seal.

It's not a seal the day before the tapes are sought to be admitted.

It's an immediate seal.

Congress could have said it differently, but they did not.

And Justice Scalia inquired of my brother counsel as to whether or not, if the tapes were submitted to a district court judge the day before the government sought to admit that evidence, would that judge... might that judge refuse to seal those tapes.

My suggestion is when you look at the statutory language there is no authority on the part of a district court judge to do that and the government would argue precisely that before a district court.

What the statute says is the recording shall first be made available to the judge issuing such order and, two, sealed under his direction.

Shall.

The mandatory term of that sentence clearly applies to both the submission and the seal.

And if that isn't clear there, it's clear in Subsection B of 2518--

Unknown Speaker: Well, wait... your... your... come to think of it, that is the logical consequence of your argument.

You... you cannot even apply to get a seal late because that would not be the seal as provided for by this section.

It's no use if you're late, right?

Mr. Reeve: --No, Your Honor.

Unknown Speaker: Why not?

Mr. Reeve: Because that... that section, immediately upon the expiration of the period of the order--

Unknown Speaker: Yeah?

Mr. Reeve: --defines when the government is to do it.

Unknown Speaker: Right.

Mr. Reeve: Now, if the government--

Unknown Speaker: I'm a district judge and I say, gee, I cannot give you a seal as provided for in this subsection because a seal as provided for in this... in this subsection... does it say subsection?

Is that what it is?

Yes.

Mr. Reeve: --Yes, it is, Your Honor.

Unknown Speaker: I cannot provide you a seal as provided for by this subsection because such a seal is a seal that is issued immediately upon expiration of the... of the order.

The order has long... expired two days ago.

I'm sorry, I cannot give you such a seal.

That would be a terrible result.

Surely you want it sealed as soon as possible.

Mr. Reeve: Your Honor, it would be my interpretation of the statute, based on the language in that sentence as well as in the language of the second section, that is, Subsection B which says all orders and applications shall be sealed by the court, that the court does have a mandatory duty, and that the government could make that argument.

That's not a central issue, I don't believe, to the proper interpretation of this section because the reality is that... I believe and in our view... the language is plain, and Congress put that language "provided for by this subsection" in there for a clear reason.

Otherwise... otherwise the statutory provision simply does not make sense.

Unknown Speaker: What is the harm to your client if the proof is by clear and convincing evidence that the tapes are authentic and accurate?

Mr. Reeve: Your Honor, I would respond in two ways.

There is no specific individualized prejudice in this situation.

That is, and the reason is, Congress did not create a prejudice test.

The same prejudice is suffered by everyone... everyone in this courtroom when the government violates the law.

It is a prophylactic rule.

That was what Congress established.

And so there is no specific prejudice.

It is the general prejudice occurs whenever the government violates the law.

And that's what Congress intended to avoid.

And I would like to get to that issue because the next issue which the government raises is, well, how do we define the term "satisfactory explanation" for the absence of that immediate seal?

And I think you have to apply common sense, and I'd like to suggest a common, everyday situation which might shed some light on the situation.

Suppose a parent imposes a curfew on his son and it's a 12:00 midnight curfew.

The son goes out, comes home at 3:00 a.m. The parent sits the child down in the living room and says, you're not home until after three hours after that curfew, you'd better have a good explanation and I'd like to hear it now.

Now, if the child responds as the government contends is an appropriate response here in this context, if the child responds, well, I didn't get in any trouble out there so don't worry about it, no harm/no foul, the parent is going to say, that is not what I asked you.

I asked you why you violated the curfew.

Why is it that you're three hours late?

And that's exactly what this statute asks.

What is the explanation for why you failed, why you violated the law?

Unknown Speaker: I think you're right about that but I also think the parent, if he or she did not get a satisfactory explanation, would not throw the kid out of the house for the rest of the night.

[Laughter]

Mr. Reeve: Your Honor, I... I suppose there's all different kinds of parents in the world, and--

[Laughter]

I... my children are not yet old enough that I have to worry about curfews.

I'm going to get to that in a few years.

But the fact of the matter is that Congress made a decision as to what the appropriate remedy is.

And that is a decision which members of this Court may feel is wrong.

Everyday... all of us feel that Congress creates statutes which may in our judgement, be wrong.

But it's not... with all respect to the Court, it's not this Court's position to determine whether or not that's a wise statute.

Congress imposed it.

It created a prophylactic rule, and it's there.

And I think the question of whether or not there is a prejudice test can also be answered by thinking about did Congress know how to create a prejudice test, if it desired to do so in a rule of exclusion.

The answer is clearly yes.

If one takes a look at other statutes in the area of criminal law... for example, the Speedy Trial Act, Section 3162(b), I believe it is, which this Court reviewed recently in the Taylor case... what that test in that section is, Congress said in a district court in determining whether or not an indictment should he dismissed with or without prejudice shall consider the following factors.

There Congress created a prejudice test.

Alternatively, in the Jenks Act, Section 3500, Congress created a mandatory exclusion provision.

If the government elects not to comply with an order of the Court to turn over evidence, either the testimony is stricken or, if the court determines it is in the interest of justice, a mistrial is ordered.

Some of us may disagree, but that's what Congress said.

Unknown Speaker: Well, how... how did all these other... other circuit courts of appeals get off the trolley.

Was it four... four others?

Mr. Reeve: Your Honor, with respect, I think it's important to break down the issue, and... and I want to address it.

First of all, with respect to the issue of whether or not the provision implies to late sealed tapes as well as unsealed tapes, there is unanimity among every circuit.

There is not a single lower court decision that supports the government's interpretation in their first argument.

With respect to the second issue, there are, I believe, four courts who in various ways say we really need to focus on tampering.

With all respect, I suppose--

Unknown Speaker: And there... there are four other courts that would... would have come out differently in this case.

Mr. Reeve: --That's correct, Your Honor.

And that's why this Court accepted, as I understand it, accepted this case on certiorari.

I respectfully disagree with that analysis.

I think that it would be presumptuous for me to try to analyze or psychoanalyze why they did what they did.

With all respect to those lower courts, we believe that they erred.

And I want to... in terms of--

Unknown Speaker: Excuse me, I didn't understand.

Mr. Reeve: --Yes, sir.

Unknown Speaker: What... in what respect have they not agreed... has not a single one of them agreed--

Mr. Reeve: Yes, sir.

Unknown Speaker: --with the government?

In what respect?

Mr. Reeve: The government's initial argument, that is, that the exclusionary provision of Section 2518(8)(a) only applies to cases where the seal is absent.

Unknown Speaker: Absent entirely?

Mr. Reeve: But it does not apply to cases where the seal is late.

There is not a single court which has... which has held that.

Unknown Speaker: Was that... was that argument made to each of the courts which you say have not held it?

Mr. Reeve: Your Honor, in a number of cases it was and those courts have held.

In... in the other cases, I can't tell, Your Honor, that the argument was made in each of those cases.

What I can say is that every single sealing case that's reported that I'm aware of deals with late sealed tapes.

None deal with absence.

And they all reached the issue of satisfactory explanation.

They applied different tests to that question, but they all reached that issue.

So at the least, implicitly, I'm not prepared to say that in all of those decisions the issue was raised by the government.

Unknown Speaker: Does any of them find an unsatisfactory explanation and exclude the tape?

Mr. Reeve: Your Honor, as we indicated in our brief, there's only one reported decision that I am aware of where a court of appeals has specifically excluded evidence.

There are a number of cases where the government has conceded a violation of the statute and it has not been litigated in a court appeals.

That is--

Unknown Speaker: Has there been any case where there was a seal but that it was put on late where the evidence was excluded?

Mr. Reeve: --Yes, Your Honor, and that's the case of United States v. Gigante.

In addition, I would cite to the Court United States v. Fury.

That is a... that is a case where the government conceded that they had violated the statute and the question there was a derivative use question.

There are decisions where tapes have been excluded.

There are not a number of decisions where the issue has been resolved.

Unknown Speaker: Gigante is also a Second Circuit case like this one?

Mr. Reeve: It is, Your Honor, and it is... it is a Second Circuit case.

I want to get back, if I might, to the issue of does Congress know how to create a prejudice test because I think, importantly in the context of this case, if you look at Title II of the Omnibus Crime Control Act of 1968, that was, as the Court is probably aware, the... what I would refer to as Congress' effect... attempt, excuse me... to legislatively repeal, if you will, this Court's decision in Miranda.

And what Congress did is they passed... I believe it's Section 3501 of Title 18... which basically relegated the giving of Miranda warnings to one category, and they indicated none of these are dispositive.

If there was any question that Congress did not create a prejudice test in this section, one need only look at the very next subsection of Section 2518 of Title III... and I refer to Section 2518, Subsection 9.

And in that provision Congress required--

Unknown Speaker: Where is that reproduced?

Is it in your brief, in the appendix somewhere?

Mr. Reeve: --Your Honor, it may not be.

I have a copy of the United States Code here--

Unknown Speaker: No, we have one somewhere.

Mr. Reeve: --I don't believe it's... I don't believe it's in the briefs, and I apologize for that.

It's an analogy that I want to make because that section requires ten-day notice.

It's a ten-day notice rule before the government seeks to admit Title III recordings.

And what Congress said in that very next subsection is... they said, there's an exception here.

If... it's two... it's based on two conditions.

Number one, if it was not possible to comply with that and if the defendant is not prejudiced by the lesser amount of disclosure.

And so had Congress wanted to create a prejudice test within this sealing requirement, they clearly knew how to do it.

They would have done it and they didn't do it.

Unknown Speaker: The gist is the... if the defendant is not prejudiced by the shortness of notice in the section you are talking about?

Mr. Reeve: That's correct.

That's exactly right.

And Congress specifically used the term "prejudice", whereas in this section, there is no reference to prejudice.

And the government effectively is asking this Court to find it somewhere out there somehow in the term and the requirements satisfactory explanation.

It's not there.

It doesn't exist, and it shouldn't be found.

The other... the other thing that I would just suggest to this Court is that the Giordano case, a unanimous decision by the Court with respect to the issue involved... that I want to address.

It was a decision authored by Justice White.

It was a decision in which the question was whether or not the executive assistant attorney general was an authorized person within Title III to authorize an application.

This Court looked at the plain language of the statute and said no.

One of the arguments made by the Solicitor General in that case was as follows.

An affidavit by the executive assistant attorney general which said, gee, the reason I signed this is because the attorney general was out of town.

I knew he would have authorized it.

I talked to him afterwards.

He would have authorized it.

In effect, if you will, a result-oriented approach to an exclusion provision in Title III.

This Court rejected that, said Congress has decided the remedy.

Congress has decided where there's exclusion and it's up to Congress.

And, Your Honors, my suggestion is that's exactly the appropriate position that this Court should take.

And, indeed, what happened two years after Giordano is Congress amended the statute.

And that's the procedure we should apply here.

If the statute's wrong, then the Justice Department should approach it and convince Congress to amend it.

But not come before this Court.

The... yes, Your Honor.

Unknown Speaker: If we adopt your rule that in effect a late-sealed... a late-sealed intercept is... is invalid, wouldn't you have two district judges passing upon the same question?

I assume the first district judge to whom the thing is presented, you bring it up to him and say, please seal this.

Don't you think he has an obligation not to seal it if he thinks there's no excuse for bringing it to him this late or do you think the seal goes on automatically?

Mr. Reeve: I think... my interpretation of the statute is that the seal goes on automatically.

That's an issue which, as far as I know, has not been litigated in the courts below.

But it would be my... it would be my view and my interpretation that that's... that that's correct.

Unknown Speaker: I think if... if you win this case that probably has to be... has to be correct or you're going to have two judges basically passing on the same thing... two district judges.

Mr. Reeve: Well, I suppose that that might be correct although there's no statutory test that... that establishes, for example, assuming that the initial judge has to do some tests, what that test is.

The test is set up for the district court dealing with the tapes because--

Unknown Speaker: Well, isn't that an ex parte proceeding?

Mr. Reeve: --it comes up in the context of this pleading.

Excuse me?

Unknown Speaker: Isn't that an ex parte proceeding?

It's ex parte.

Mr. Reeve: It certainly is, Your Honor.

Unknown Speaker: Surely you wouldn't be fighting about whether he--

Mr. Reeve: That's right.

It's an ex parte proceeding in which defense wouldn't be given any notice and in effect you'd be replacing the adversary process with such an ex parte hearing.

Unknown Speaker: --Mr. Reeve, what part does the satisfactory explanation requirement of the section we're talking about play under your analysis of the seal requirement?

Mr. Reeve: Your Honor, the satisfactory explanation plays a critical component.

If the government fails to immediately seal the tapes and the courts have pretty uniformly held immediate as within one or two working days of the court, then the government bears the burden of coming before the district court and establishing a satisfactory explanation.

That, I would suggest to the Court is something more than negligence, it's something more than a gross misreading of the statute, and the court looks at it and considers a number of questions.

Unknown Speaker: Is the... is the failure excusable?

Is that what you're asking?

Mr. Reeve: Yes, in effect that's right, Your Honor.

And the courts... the Second Circuit and the D.C. Circuit Court of Appeals and the First Circuit look at a number of factors.

The principal factors, we believe, are, number one, how long was the delay?

Number two, why did the delay occur?

Number three, is this part of a pattern of violations of this sealing requirement?

We have in this case all three.

In effect, the court below looks at the totality of those circumstances that are relevant to the question that the statute asks.

Why?

And the district court makes a determination based on his assessment.

Unknown Speaker: But in... in your view, the statute doesn't just ask why.

I mean, that would authorize the government's view.

Just come in and give a frank explanation of all the things that went wrong and it asks for... for first why, and then, is it your position, was this default excusable?

Mr. Reeve: Yes.

Unknown Speaker: Is... is that--

Mr. Reeve: Yes.

Yes and I based that on two words.

One, the government must supply an explanation.

Number two, the government must supply an explanation which is satisfactory.

They cannot merely come in and say, this is why we did it, and that's all the inquiry.

Unknown Speaker: --Can a good faith mistake of law be a decent explanation?

Mr. Reeve: I think that in some circumstances, yes.

Unknown Speaker: Like where reasonable men might differ on what the law means?

Mr. Reeve: I think that's possible.

I think it's going to depend on the length of delay which develops and whether or not there is a conduct, a repeated pattern such as here.

In our case what we have is all three.

Unknown Speaker: Well, you know... I know, but here the claim was that each time there was the same mistake of law--

Mr. Reeve: Well--

Unknown Speaker: --and each time it was a good faith mistake of law.

Mr. Reeve: --Your Honor, I'd like to get to that issue because I think that--

Unknown Speaker: Well, isn't that the claim?

Mr. Reeve: --It is the claim and I don't that's what happened, and I think that the record is clear.

And I would refer the Court specifically in the Joint Appendix--

Unknown Speaker: Well, the district court seemed... at least in one case, seemed to think that, good faith or not, it was just too long.

Mr. Reeve: --Well, there is language in the district court decision--

Unknown Speaker: And the court of appeals has specifically disagreed with that.

Mr. Reeve: --Well, the district... there is language in there, but the... but the district court also did make extensive findings of fact and at page 78(a), which is in the... attached... his ruling attached to the Petition for Certiorari... the district court finds in effect gross negligence.

And... and I think that there are some differences.

But for purposes of this case--

Unknown Speaker: So it just wasn't really a good faith and excusable mistake of law, is that right?

Mr. Reeve: --It was not, Your Honor, and the reason is this.

The prosecutor here decided, even in light and in the face of the statutory requirement of immediate sealing, in light of a memo that he had from the Justice Department that said, if you don't immediately seal, you risk suppression.

Without reading the case law... he admitted he hadn't read the case law before he made this decision... without looking at a treatise that he had on his desk that said... specifically rejected his theory and he was asked at the district court--

Unknown Speaker: Well, what... what... theory of what?

Mr. Reeve: --His theory that when you have one big wiretap investigation, you don't have to seal until the very end.

That was the theory that he went forward.

He was asked, under your theory, there is no... arguably no limit to how far out that's going to take.

If the wiretap investigation takes five years, well you've got a five-year sealing delay.

Yes, that's correct.

It was an unlimited, if you will, venture, way, way out beyond the statute.

And that kind of conduct by the Justice Department does not sanction, does not warrant, the label of a satisfactory explanation.

Unknown Speaker: Well, I should assume that if the period of the order is extended a number of times, there is going to vast quantity of tapes that are just sitting around until the government brings them into the court to be sealed.

Mr. Reeve: That... that's absolutely correct, Your Honor, and in my view, and in the view of the Second Circuit and a number of courts, Congress would have been perhaps wiser in saying after every order and then after every single extension.

That is, every 30 days you--

Unknown Speaker: After every period.

After period--

Mr. Reeve: --Correct.

Unknown Speaker: --is extended.

Mr. Reeve: Correct.

Correct.

Without... without allowing the government to seek extensions.

But that, again, gets to the wisdom of Congress.

It's not a perfect statute.

It doesn't prohibit tampering, but it was designed to avoid the opportunity for tampering.

And that's the critical problem... one of the critical problems with the government's argument.

The government says the sole purpose is tampering.

That's not the sole purpose.

There are a number of purposes and they are set forth in the legislative history and they include the following.

Number one, Congress intended to create immediate direct judicial supervision over wiretap evidence.

Number two--

Unknown Speaker: For what purpose?

Mr. Reeve: --Well, I think in part that was a response to this Court's ruling in--

Unknown Speaker: Well, but--

Mr. Reeve: --Berger and Katz.

Excuse me, Your Honor.

Unknown Speaker: --Well, wasn't it for the purpose of making sure there wasn't any tampering?

Mr. Reeve: Absolutely.

That's ultimate statutory purpose.

But what Congress did was, looking at that ultimate statutory purpose, Congress decided the best most effective way to approach that ultimate goal of the statute is to have that judicial supervision to reduce the opportunities for tampering.

Congress knew it couldn't avoid all tampering.

The government argues that.

If... if a prosecutor or a law enforcement agent is bent on tampering with evidence, he's going to do it.

And Congress knew it couldn't avoid that.

But what it decided is... we're going to create this standard to say to the government, you got to turn them in.

And that judicial supervision is going to reduce the incentive and the opportunity for tampering with those tapes.

And it responded as well to this Court... as I was referring to earlier, to this Court's rulings in Berger and Katz, where one of the problems with the statute, the New York State statute, was... and the Court noted there was no return to a judicial officer.

The same problem noted in Katz.

That was one of the problems specifically referred to in the congressional history in the Senate report.

In addition, Congress was concerned about the potential abuses.

It was clear at that time in 1968, when the statute was passed, that wiretap was a dangerous area.

It was ripe for abuse.

And Congress was concerned.

And what the decision was... and it may not be a decision which every single member of this Court agrees is the right line, but they created a line... immediate sealing upon the expiration of the orders or extensions thereof.

And it's a line they drew, and it's an appropriate line.

It may not be the perfect line.

The... and so I think that that's... even if you get to the question of statutory purpose in legislative history, it aids our view, not the government's.

There are two other points that I would like to make.

Number one, the government's test, if adopted by this Court, is going to require tampering hearings in every district court, in every sealing violation, regardless of whether it's a short delay where the government's explanation may be very, very reasonable, because what they're asking the Court to do is define satisfactory explanation as no tampering.

Once that definition is established, in cases where the test created by the Second Circuit is in fact very, very helpful to the government.

And the test applied has been extremely liberally... liberally applied.

Excuse me.

Under the government's theory, we're going to have tampering hearings, and experts coming in.

And that, in some ways addresses the question that Justice O'Connor raised, which is this case has gone on for years and years.

And does this Court want to create a standard where you are going to compel district courts to have those kind of hearings?

The hearings that occurred here that were not satisfying, the district court made no finding on any of the excluded tapes.

There is no finding that those tapes were not tampered with.

None at all.

He only found them with the tapes that were not excluded.

Finally, in conclusion, the... the government came first before this Court in its petition for certiorari on page 11 and the government said in that petition, this is a serious problem because despite the best efforts of a supervising attorney in a wiretap case, there will be occasions on which the tapes will not be immediately sealed.

Congress agreed with that and that's why they created a satisfactory explanation.

But as the delays get longer, you need a better and better reason.

But the problem, and the Second Circuit has adopted that approach... it is an approach which allows the best efforts of a supervising attorney.

What the government is effectively asking this Court to do today is to rewrite the statute to avoid separation of powers issues... to avoid issues of judicial restraint... all so that we can... protect the negligent, sometimes willful, sloppy, intentional bad faith conduct of officers of the United States Justice Department.

That, we believe, is a road that this Court should not travel down.

Thank you.

Unknown Speaker: Thank you, Mr. Reeve.

Mr. Bryson, do you have rebuttal?

Rebuttal of William C. Bryson

Mr. Bryson: Yes, I do, Mr. Chief Justice.

The first point I'd like to make quickly is each of the courts already requires us to show, as part of a satisfactory explanation, that there was no tampering.

So, there's not going to be any great increase in the numbers of these hearings since that's already a requirement that we have to satisfy.

The question is do we have to do more by way of establishing a satisfactory explanation for delay.

The second point is the Gigante case, which is the only other case in which there has been suppression at the court of appeals level that I am aware of, was a case in which we had no explanation for the delay.

It wasn't a satisfactory explanation case.

And third, and most important, the... teasing out the argument that, well, you have to look at how long the delay was, why the delay was, and that there was a pattern of delays, in this case in quite unfair because there was one legal mistake, the construction of the term "extension".

That's what resulted in the long delay.

Every day that passed was not compounding the felony because this was somebody who was... believed he was secure in his construction of the term "extension".

Unknown Speaker: Well, wouldn't you apply some sort of a... objective test to whether he was justified in believing that?

Mr. Bryson: Well, I think--

Unknown Speaker: The courts below thought that there was just no basis for that.

Mr. Bryson: --Well, they... they thought he was wrong.

Now, the district court did not find gross negligence.

The district court did find negligence.

But we would submit that where the Second Circuit in one of its own opinions, in the Principie case, had found that moving from place A when the target moves to place B and getting another order for place B, when that is an extension, his construction of the statute was not unreasonable.

It couldn't be unreasonable because the very court that ruled in this case had previously said that that's what extension means.

Now, the court distinguished that case in this case by saying, well, but that was the word 2518(8)(d) dealing with inventory service.

And also, there was no gap between the two orders.

Therefore, that could be an extension and this, it would be unreasonable to suppose, would be... would be an extension.

But it... the word has to mean the same thing in both subsections of the same provision, and we submit, therefore, that it wasn't unreasonable for him to draw that conclusion.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bryson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Dalia v. United States - Oral Argument

Sun, 20 Jun 2010 20:42:34 +0000

Case:

Dalia v. United States

Media File:

77-1722_19790110-argument.mp3

Related Transcript:

77-1722_19790110-argument.xml

Transcript:

Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will resume arguments in Dalia against the United States.

Mr. Frey you may proceed.

Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court.

Petitioner has presented three separate grounds in support of his contention that the agents' surreptitious entry into his unoccupied business premises for the purpose of planting of listening devices that were necessary to carry out the court authorized eavesdropping was unlawful and requires suppression of the intercepted conversations.

First, although he didn’t put it first in his brief, but I think he has continued to maintain the position, he contends that such surreptitious entries are absolutely barred by the Fourth Amendment regardless of the existence of any Congressional authorization for them or the presence of any court order authorizing them.

Second, he contends that even if such entries could be carried out consistently with the Fourth Amendment, Congress has either prohibited or failed to authorize them in Title III or elsewhere.

Third, he contends that even if there is no constitutional or statutory barrier to such entries, the agents' action in this case was unlawful because of their failure to procure from the District Court an express authorization of the entries that were necessary to carry out the court’s Title III order.

Now before I begin the argument I think there is a factual background that came up slightly yesterday and there is some misconception around as to the question of the need to make trespassory entries for purposes of planting the listening devices in connection with eavesdropping orders.

There is language in Berger opinion of this court 10 years ago, which I think was still several decades before its time in terms of talking about electronic beams from outside and what we’ve called in our brief The Buck Rogers kind of equipment.

As matters stand today there are very, very few cases if any of surveillance of interior areas where that kind of equipment is useful as a practical matter.

Similarly the martini olive transmitter and so on is virtually never used in these cases because radio transmitters are not used because they are easily detected by a scanner that you can buy at RadioShack for a few dollars.

So that in the normal case when you are talking about a Title III eavesdropping order of an office or some interior area you are talking about the need for some kind of what was viewed as a trespassory entry prior to Katz.

Now in -- we’ve been advised by the FBI that in perhaps slightly fewer than 10% of the cases the Spike mic through the wall kind of approach is available and that would be normally the cases where the FBI is able to obtain control of the adjoining space, for instance if it’s a hotel room and they can rent the adjoining hotel room or an office and they can rent the adjoining office.

But in all other cases some kind of a physical entry of the agents into the premises together with a fairly extended period of time necessary because this is a wire installation, it’s not a matter of putting a radio transmitter and but of installing something and running wires out to a receiver is necessary.

Now they do use ruses in a certain proportion of the cases, but the vast majority of the cases are entries such as occurred in this case.

Justice John Paul Stevens: Mr. Frey you described what the practical situation is today. How much of that was explained to Congress during the hearings on Title III?

Mr. Andrew L. Frey: Well, we have cited in our brief about 12 to 14 illustrative instances of testimony before Congress about how surveillances were conducted and it was clear to Congress that trespassory entries of the kind that occurred in this case would be frequently necessary.

Justice John Paul Stevens: Senate report doesn’t mention that subject at all.

It does mention the cases in which the Spike Mic was used and some of the other cases where there was no entry, but there is nothing in the Senate report that I could see where they discussed anything like what you’ve just described.

You do and I’m aware of the fact that there are references in the hearings that you described.

Mr. Andrew L. Frey: Our argument, there are references in the hearings, there are references in the debates, there are references in the President’s Commission report which was relied on heavily by Congress and of course Berger itself which was a single --

Justice John Paul Stevens: Many of those references indicate that that even a majority of the cases there would be need for a surreptitious entry.

They do refer to the need on occasion, but they also cite cases which indicate that frequently it could have been done without a surreptitious entry.

So how do, as I’m just wondering what the state of knowledge of the Congress --

Mr. Andrew L. Frey: Well, I think that to some extent we must speculate about what individual members of Congress expected.

However, I will get to the point that there is evidence I think in the Senate report itself that Congress intended to allow the installation of eavesdropping devices of the kind that we have in this case.

Justice John Paul Stevens: Yes, but does it -- does that evidence in the Senate report also go to the point of surreptitious entry, that’s it?

Mr. Andrew L. Frey: Well--

Justice Thurgood Marshall: [Inaudible] what the man is going to say?

Mr. Andrew L. Frey: No, I think it’s clear, but there is talk and Mr. Ruprecht suggested yesterday that there might be many ways you might insinuate a Confederate or an informant and well that simply is not practical.

You might use a ruse, but what I’m suggesting is the kind of ruse that you need is one that gives you access to the man’s office for a couple of hours.

Justice John Paul Stevens: I understand that, but the point that interested me was that the Senate report relies very heavily on this Court’s previously decided cases, which included the use of a mic on the outside of a telephone booth and the Spike mic. Well they may not have focused on this problem is all I’m suggesting because of the emphasis on the cases from this Court?

Mr. Andrew L. Frey: Well, I think what, I don’t -- I can’t cite you at the moment any particular place in the legislative history where there is a statement that reflects Congress’s understanding of the facts as I’ve told you this morning, but I think it is clear that they knew and there is absolutely no place in the legislative history that suggests that they intended to prohibit surreptitious entries of the kind that occurred in Berger.

Let me pass for the moment the broad constitutional contention of petitioners because I think that is sufficiently insubstantial that I should get on to other more important questions in terms of the question of the existence if any is necessary of statutory authority for a surreptitious entry to install listening device.

Now I believe that on close analysis to answer to this question is fairly clear and it is as we are arguing it, but the Sixth and Ninth Circuits have concluded that there is no power in the Federal judiciary to authorize eavesdropping that entails surreptitious entry into private premises.

And these decisions of course are of grave concern to the Department of Justice.

So they have rendered it virtually impossible for the government to use the authority conferred by Title III to intercept oral communications in the effort to combat organized crimes in the State, organized crime in the States within those circuits.

Now in considering this question of statutory authority I think we should first look at Title III itself and consider three possible conclusions that might be reached about the effect of that enactment.

The first which is what I understand petitioner’s argument to be is that Title III prohibits surreptitious entries into private premises to install listening devices.

The second, which we would contend on the other side is that Title III is itself a source of authority for such entries.

The third possible conclusion is that Title III neither confers nor withdraws authority, so that the source of authority, if any, specific source is necessary must be sought elsewhere.

Now with regard to petitioner’s proposition and I think the conclusion of at least the Ninth Circuit and the Sixth Circuit did give more consideration to alternatives that Title III’s failure to contain express provisions regulating the authorization of trespassory entries to plant listening devices reflects a congressional purpose or at least a congressional accomplishment of the end of banning or withdrawing authority for such entries.

Now we submit that there is no basis for the court to impute the Congress such bizarre and self defeating action.

After all while Title III was designed in part to protect the citizenry from unconstitutional invasions of communicational privacy as well as from non governmental invasions of communicational privacy, it was indisputably also intended within constitutional limits to enable law enforcements officers to use electronic surveillance to combat organized crime.

And what was the case that Congress was studying most closely in its efforts to design a constitutionally acceptable system to enable law enforcement officers to conduct electronic surveillance, that case was Berger against New York and what was it that the officers did in Berger, that Congress we submit plainly sought to allow in future cases, they surreptitiously entered a business office to plant a listening device.

Justice Harry A. Blackmun: Mr. Frey at that point, would your argument be the same if the surreptitious entry was into a private residence as distinguished from a business office?

Mr. Andrew L. Frey: Well we would reach the same conclusion, but it is possible that the court would view the issues.

I mean we don’t deny that there is some more sensitivity in entering a private home than there is in entering a business office, although both are protected by the warrant clause of the Fourth Amendment, but I think we would ultimately come to the same position.

Now is it reasonable to conclude that Congress while on the one hand trying to legalize law enforcement eavesdropping in circumstances like the Berger case, on the other hand sub silentio concluded that surreptitious entries such as were in Berger were so offensive that they ought not to be permitted.

It is that implausible premise that petitioner asked this Court to adopt and that underlies the Sixth and Ninth Circuit decisions in Finazzo and Santora. Now I’d just come back and mention that while the legislative history is not as clear as we would like, there is no question that Congress was repeatedly told that the kind of eavesdropping in Berger and that it was studying would often or usually involve surreptitious physical entry into the premises where the conversations are to take place.

Now it nevertheless decided to authorize interceptions of oral communications without restriction as to the places where such communications could be intercepted.

And in fact we quote a statement by Senator Tydings in our brief at page 38 in which he describes a fact situation very much like Berger and he was one of the principle sponsors of the Bill and states his view that it is offensive that this mafia figure or organized crime figure who he was talking about could not be convicted and that the purpose of the Bill was to facilitate or legalize under appropriate controls the kind of entry to plant a listening device that occurred in that case.

Now petitioner stresses what he perceives to be the Congressional silence on the subject to surreptitious entries as evidenced that it did not intend to permit them for Title III searches, but Congress was not utterly silent.

The Senate report in describing what the legislation generally set out to accomplish and it stated at Page 40 of our brief said, “Legislation meaning the constitutional standard set out in the decisions,” referring to Katz and Berger, “And granting law enforcement officers the authority to tap telephone wires and,” and this is just the key language, “install electronic surveillance devices in the investigation of major crimes and upon obtaining the court order which is the purpose of Title III of S917,” and then they list the groups that have endorsed that legislation.

So while the statements don’t proliferate on the subject we take that as a clear statement of the congressional intent to authorize this.

Now we submit that Congress did not dwell --

Justice Potter Stewart: What you have read doesn’t say much more than the statute, does it?

Mr. Andrew L. Frey: Well, I don’t think the statute talks about installing--

Justice Potter Stewart: Will you read that again if you, sorry I [Inaudible] my colleagues, but --

Mr. Andrew L. Frey: The statement says that in describing the – well, I’ll just take a little bit out of order in describing what’s the major purpose of Title III.

The statement says, “Granting law enforcement officers that authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes and upon obtaining a court order.”

Justice Potter Stewart: Well, obviously if you are going to have electronic bugging, something has to be installed?

Mr. Andrew L. Frey: Well no, not as they were thinking of -- if they were thinking as has been suggested--

Justice Potter Stewart: The mic has to be installed?

Mr. Andrew L. Frey: Well, yes but the suggestion has been made in for instance in the opinion in Finazzo that often you don’t have to drop the transmitter in the martini, you use the parabolic mic from a distance, many --

Justice Potter Stewart: Putting a olive in a martini is an installation of the olive into the drink?

Mr. Andrew L. Frey: Well then I don’t think that’s the sense.

Justice Potter Stewart: In other words, install is the only word that’s the, that’s the word I think --

Mr. Andrew L. Frey: I think that’s a significant word and that’s the word that I’m calling for the Court’s attention here, yes.

Justice John Paul Stevens: Mr. Frey, but just before we leave with that, because that doesn’t mention the surreptitious entry and I was wondering in Berger itself, I know it was listening device in an office, but does the record in that case tell us whether it was just installed surreptitiously or by rules.

Mr. Andrew L. Frey: I --

Justice John Paul Stevens: You can’t tell from the opinion, right?

Mr. Andrew L. Frey: I think it was installed surreptitiously.

We’ve checked the record and I am advised that it was installed surreptitiously and that there was no separate entry or at least in the first of the two bugs in Berger and the statute of course contained no express entry provision.

Justice John Paul Stevens: Is there anything that in the legislative history that shows that Congress knew that the device had been installed surreptitiously as opposed to by rules?

Mr. Andrew L. Frey: I am not aware of anything.

Justice John Paul Stevens: You are not aware of anything.

Mr. Andrew L. Frey: Now, it’s our argument that Congress did not dwell on the subject of surreptitious entries because it simply didn’t suspect there was any serious problem.

Nothing in any prior decision of this Court had sounded any alarm on this particular subject and of course Rule 41 governing conventional searches itself says nothing about express separate entry authorization.

We think that Congress assumed that having authorized the search itself and a detailed provision satisfying what it understood the Fourth Amendment to require, it was thereby authorizing the implementation of the search by the means that were reasonably necessary to do so.

Now at this point I would like to make our position as to the statutory source of authority clear because in reading over our brief and preparing for the argument, I am afraid it may state the matter in a fashion that it’s subject to misinterpretation.

In Part 2 of our brief, we were addressing the contention of petitioner and the conclusion of the Sixth and Ninth Circuits that Title III does not itself authorize entries to plant listening devices and that accordingly such entries may not occur.

We showed convincingly I hope that if that promise was correct, the conclusion was not correct because Rule 41 provides the power to authorize trespassory entries if one must look elsewhere then Title III for such power.

Now we didn’t mean by this argument to suggest that Title III is not itself a source of authority.

We believe that it is, but we recognize that there are two ways to look at the entry that took place here.

The first which several courts have adapted is to view it as an incident of the search authorized by the Title III order, it's so viewed and we believe this is the best view of it.

Title III itself supplies the authority for the entry to carry out the search, just as Rule 41 implicitly authorizes the entry to accomplish a conventional search.

On the other hand several courts have concluded that the entry entails a wholly separate invasion of a distinct constitutionally protected interest rather than an intrusion ancillary to the electronic surveillance with which Title III is concerned.

Under that view, one could perhaps reasonably contend that Title III supplies no authority for the entry.

But that conclusion does not resolve the inquiry in petitioner’s favor, rather as we say in our brief, Rule 41 supplies the authority for distinct trespassory intrusions of the kind that petitioner by hypothesis finds present here.

Now unless the Court has further questions on the statutory issue, I’ll pass on now to the question of the need for an express entry provision.

Justice John Paul Stevens: Mr. Frey, excuse me.

Justice William H. Rehnquist: Mr. Frey, what if in the course of execution of a warrant such was upheld by the Third Circuit here, an officer would have wandered into the bed and then go through the dressers, drawers and finds some stuff and there and seek to later offer that in evidence.

Do you think that would be admissible?

Mr. Andrew L. Frey: No.

Indeed we’ll come to that in the portion -- I don’t think -- I’ll come to that in the next portion of my argument discussing the need for --

Justice Potter Stewart: Anything in plain view would be admissible if you are right, that is currently --

Mr. Andrew L. Frey: In the course of doing what is reasonably necessary to carry out the court’s Title III order, anything that comes into plain view would be admissible.

Justice Potter Stewart: If you were lawfully present --

Mr. Andrew L. Frey: If you were lawfully present.

Justice Potter Stewart: Then anything in plain view would be admissible?

Mr. Andrew L. Frey: Yes.

I would --

Justice Potter Stewart: Before you proceed, I just want to identify one problem you may come to it later in your argument.

Do you view Section 3109 as changing the law that preexisted in this test statute, maybe you are going to cover that later.

Mr. Andrew L. Frey: Well, we view Section 3109 as imposing a restriction on the manner in which the police may execute search warrants of houses and we believe it applies only to occupied premises.

Justice John Paul Stevens: You don't view the statute as enlarging the officer’s authority?

Mr. Andrew L. Frey: We don’t and we think that the statute after all was originally adopted as part of a package of laws in the 3100 series that most of which is now incorporated in Rule 41.

So that our understanding is that Rule 41 conveyed to Magistrates the authority to authorize searches and to officers the authority to carry out such searches, and 3109 passed a special rule in accordance with the common law rule and perhaps constitutionally required I think that’s an issue that’s not clearly settled, regarding --

Justice William J. Brennan: That certainly wasn’t settled in Miller?

Mr. Andrew L. Frey: No, we’re not suggesting that it's settled and it was the subject of a division of opinion in Kerr.

Justice William J. Brennan: There was a division in Kerr?

Mr. Andrew L. Frey: Yes.

Justice William J. Brennan: But Miller was certainly not a constitutional --

Mr. Andrew L. Frey: But we think --

Justice William J. Brennan: Was it?

Mr. Andrew L. Frey: No, I think you said in Kerr that Miller was a supervisory power opinion, but it was your view that that was a constitutional underpinning.

But for purposes of this case I don’t think it’s necessary for the Court to consider whether 3109 is constitutional or statutory because we think it's plain that 3109 doesn’t apply to this kind of --

Justice John Paul Stevens: It just goes to question of whether there might be need for statutory authorization that’s the only relevance of it and I’m not expressing a view on it, but --

Mr. Andrew L. Frey: Well, the question I have argued so far that there is statutory authorization.

There is an argument that no statutory authorization is needed as well and that depends on how the court views the relationship of the trespassory entry to the search that was authorized by a court order and depending on how it’s viewed you may or may not --

Justice Thurgood Marshall: About the statutory point, what would be wrong with the judge asking how are you going about this, are you --

Mr. Andrew L. Frey: Nothing.

Justice Thurgood Marshall: Knock the man’s door down or not.

Mr. Andrew L. Frey: Excuse me.

Justice Thurgood Marshall: Are you going to knock the man’s door down?

Mr. Andrew L. Frey: There would be nothing wrong with the judge inquiring into it and indeed --

Justice Thurgood Marshall: What about requiring the judge to do that, to just see how far you are going?

Mr. Andrew L. Frey: There, in our view it’s, it is --

Justice Thurgood Marshall: Of course yeah and judge didn’t say anything --

Mr. Andrew L. Frey: I understand that Mr. Justice Marshall.

In our view it is good policy for us to go to the Magistrate, explain to him or judge in a case of a Title III order, explain to him how we are going to carry out the entry and obtain in the Title III order an express authorization, that is now the Department’s policy and regardless of the outcome of this case we would continue that policy because --

Chief Justice Warren E. Burger: Didn’t Judge Higgin Botham say in his opinion something to be effect that it would be prudent to disclose to the judge from whom the warrant is sought that they take this step, do this examination?

Mr. Andrew L. Frey: There is no -- he said that.

We agree with that but the fact that we may have been imprudent in this case is not a basis for over turning Mr. Dalia’s conviction.

Now turning to the question of whether there was a need for an express entry authorization in the eavesdropping order.

There is of course no such requirement contained and visible in Title III and we suggest that the issue is a purely constitutional one.

Now, I want to begin my discussion at this point by making clear that we are not suggesting the no warrant at all is necessary for surreptitious trespassory entry into an office or home.

Of course, our argument is that the warrant issued by Judge Lacey in this case authorizing the interception of oral communications in petitioner's enclosed office confer the requisite authority for the entry that was made.

Cases like Silverman and Katz thus do not help petitioner at all since they involve no warrant of any kind.

Now it’s undisputed that the Court’s Title III order in this case met all the stated requirements of the warrant clause of the Fourth Amendment.

It was sought under oath, a probable cause was shown and the order particularly described the place to be searched which is of special relevance here and also the things to be seized.

The entry was a necessary aspect of the execution of the court’s order, but in our view it was implicitly authorized in the same way as I’ve said before than any entry necessary to execute a conventional search as implicitly authorized by Rule 41 warrant.

Now in making our argument, we are also not contending and this gets to Justice Rehnquist's point that the Title III order alone suffices to give the agents an unlimited license to do as they please in executing the order.

Just as with the conventional search, the agents must act reasonably in the means they select to implement the Title III order and the reasonableness of their actions is subject to post search judicial inquiry.

Here that inquiry occurred and both lower courts found that the surreptitious entry was in fact reasonable and necessary to execute the eavesdrop order.

Now, as I pointed out earlier the vast majority of eavesdropping of enclosed interior locations will require a physical trespass.

The situation is not materially different from that of a conventional search.

Now, often a single conventional search can involve an intrusion into several arguably distinct privacy interests.

Yet, the satisfaction of the express requirements of the warrant clause is normally considered sufficient.

Now, let me give you a hypothetical of a warrant to search the second floor rear room of a house.

In the course of executing that warrant which particularly describes the place to be searched, the officers may hypothetically at least have a choice of entering the front or the back door, walking through the living room or the dining room or some other rooms where they are arguably distinct privacy interests.

I am aware of no case which suggest that they have to get a separate warrant or that the magistrate expressly has to describe how they do it.

That's not to say that they don’t have to do it reasonably when they go into the premises they can’t go into other bedrooms that are not on the way to the bedroom that they’re authorized to search.

Now, let me come back to a point that Mr. Justice White made yesterday which I think is a very powerful point in our favor on this issue and that is the effect of arrest warrants on the authorization of interest.

I think the law generally is at least in the lower courts and there is some suggestion implicitly in this Court although I assume the question is open to reexamination that an arrest warrant would authorize the officers to enter the home of the person named in the warrant on at least let’s say probable cause to believe that the person is present in order to carry out the arrest.

Now, this is a very parallel situation to the present situation.

Indeed logically our case is, I think stronger because in the case of an arrest warrant, there is a very substantial chance that the individual will be in a public place or alternatively that when you knock at his door, ring his bell, he will come to the door and no entry will be necessary.

Nevertheless, the state of the law in the lower courts at least is clear that the arrest warrant authorizes the entry and I may mention another fact that makes our case much stronger.

We have a description in our Title III order of the location, the entry into which is being challenged here, an arrest warrant would contain no description.

So it’s difficult for me to see if the Court rules against us in this case how it can be squared with the present doctrine and an arrest warrant appears to justify an entry into the suspect’s premises.

Now, finally just to make a couple of or to make one other point, the Court is free, it has the power as Justice Marshall suggested to ask the officers what are you going to do, how are you going to do it to consider restrictions that are deemed wise to impose on the manner of executing the search and I think this is true with conventional searches as well as with the Title III search.

And the existence of this power it seems to me elevates greatly any concern about the agents barging in.

Justice Thurgood Marshall: Suggesting that he be required to do it.

Mr. Andrew L. Frey: Well --

Justice Thurgood Marshall: And you wouldn’t object to them, would you?

Mr. Andrew L. Frey: Well we would object if you’re doing it by deciding this case against us, but otherwise we wouldn’t object to it.

Justice Thurgood Marshall: It maybe alright to put it in a foot note?

Mr. Andrew L. Frey: No, we would not object to your expressing the view if you felt so as the Chief Justice pointed out the Court of Appeals did in this case and several others have done, Judge Grufein I think did it in the Scaffidi case.

It’s a good idea.

We think it would be prudent for the government to do it, we agree.

Justice Thurgood Marshall: He said [Inaudible] the rule.

But now the present rule is that you do explain to the jury.

Mr. Andrew L. Frey: Well, we don’t -- we are not clear that except in the exercise of the court’s supervisory power over the conduct of district judges granting Title III orders, it is possible that the court could say that we want the judge in issuing an order to address themselves to this problem and to put a provision regulating the manner of entering into Title III order, it’s possible that you could do that.

Justice Thurgood Marshall: I misunderstood, I thought you said it was the rule of the department?

Mr. Andrew L. Frey: Well, it is the department’s policy to obtain an express authorization from the court for each entry that is made to install or to maintain or to replace.

Justice Thurgood Marshall: But there is no requirement that they tell this court how they are going to make the entry.

Mr. Andrew L. Frey: Well, I think it’s our, we are talking about surreptitious entries now.

Justice Thurgood Marshall: Yes sir.

Mr. Andrew L. Frey: I’m not sure exactly how we do it, but I think in practice the judges are made aware of how we are planning to do it.

Justice Thurgood Marshall: But it wasn’t in this case?

Mr. Andrew L. Frey: No, but this case was before the adoption of the policy.

We adopted the policy after the DC circuit’s decision in Ford called to our attention the difficulties --

Justice Thurgood Marshall: We will not find it obviously.

Mr. Andrew L. Frey: You will find it in our brief.

We discuss it in our brief and I think we’d quote from it at page --

Justice Thurgood Marshall: I missed it.

Mr. Andrew L. Frey: Page 56 of our brief.

Okay.

Justice William H. Rehnquist: Mr. Frey, we heard a case yesterday argued I don’t know whether you were here or not saying in which the criminal defendants claimed that violation of a regulation issued by an Executive Department required exclusion of evidence even though neither the constitution or the statute required it.

I take it you’re not suggesting that you’d be satisfied with a decision by this Court saying that a departure from departmental policy that you have referred to would require exclusion.

Mr. Andrew L. Frey: We would be very unhappy whatsoever decision, yes.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Scott v. United States - Oral Argument

Sun, 08 Aug 2010 19:13:52 +0000

Case:

Scott v. United States

Media File:

76-6767_19780301-argument.mp3

Related Transcript:

76-6767_19780301-argument.xml

Transcript:

Argument of John A. Shorter

Chief Justice Warren E. Burger: We hear arguments next in Scott against the United States.

Mr. Shorter, I think you may proceed when you are ready.

Mr. John A. Shorter: Thank you.

Mr. Chief Justice may it please the court.

The minimization provision of title three and on Omnibus Crime Control and Safe Streets Act 1968 provides that every order and extension thereof authorizing an electronic surveillance shall contain the provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communication not otherwise subject to interception under this Chapter.

Chief Justice Warren E. Burger: I think the court requested counsel to address the problem of standing, is that correct?

Mr. John A. Shorter: Yes there are three questions really before the court in this appeal.

First one, is the meaning and interpretation and and construction of the minimization provision of Federal Wiretap statute.

We feel that specifically question is whether the court below determined the correct standard and properly applied to conduct of the wiretap in this case.

Related questions also implicated, one is as the scope of the remedy to be applied in the event of a violation of minimization requirement and that is whether full or partial suppression of the fruits of the wiretap to be mandated and thirdly whether the petition has got standing to assert the violation.

The standing question that relates only to the petition of Scott within the framework of the facts of this case.

There is a related petition for writ of cert also arising from the Circuit court of opinion in this case and that is the petition for Chloe V. Daviage and of course per situation on the question of standing is same as that of the petition of Scott.

Question of standing was fully briefed in this Miss Daviage's petition in her brief as amicus and we of course have fully researched in brief, the point of standing in our brief.

I would say that in suffice standing, we think that the question was adequately and correctly answered by the DC Circuit Court of Appeals in the Balosi (ph) case which was also an appeal from a wiretap ruling of the District Court and similarly in the earlier opinion of the Court of Appeals in this case referred to as Scott 1, the direct appeal in this case is from what is referred to through out the briefs of the parties as Scott 2 but in Scott 1 the Circuit court fully addressed the question standing and it determined that under the Court’s interpretation of the related provisions of Title 3, the petitioner Scott clearly had standing to assert the violation of the minimization requirement.

We feel that was the correct analysis of the court’s analysis of the question was a correct one and certainly the court’s conclusion of we feel was amply justified by the language of the statue which identifies a grieved person whose as one whose conversations are intercepted over the Wiretap and secondly one against whom the interception is directed, on both questions, on both points the petitioner Scott qualifies.

The petitioner Scott was identified in the application for the wiretap, that is the affidavit of The Bureau of Narcotics and Dangerous Drug agent who applied for the wiretap as being one of the principal targets.

Though the order that was entered by the court in response to this application did not identify Scott particularly as one of the subjects.

The order said that the targets of the investigation that the wiretap was authorized to intercept the conversation of Bernis Thurmon, Alfonso Lee and others, and of course, for one to determine who the others might be and so far as what the record would show at that point, there were nine persons identified in the application, it being the principal offender.

Scott was certainly a principal target of the investigation.

Chief Justice Warren E. Burger: Perhaps you are coming to this but let me put it to you know once it is determined from listening that approximately one third of the calls relate to not narcotics traffic, does not that have some -- give some impetus to continuing surveillance.

Mr. John A. Shorter: The entire question of minimization is a very difficult one, it cannot be resolved we feel by reference to percentages of narcotic related call.

Chief Justice Warren E. Burger: Why not?

Mr. John A. Shorter: Not the question of minimization.

Chief Justice Warren E. Burger: One third of the conversations relate to illegal traffic in narcotics, how can it not bear on the continued surveillance.

Mr. John A. Shorter: We feel that the question of minimization is related to a number of factors, the least one of which we would urge would be the percentage of narcotic related calls.

For instance, it would seriously relate to who it is who might use the phone, whether or not that has been developed over the course of the Wiretap, a pattern of clearly innocent calls between certain people who talk on the phone and--

Chief Justice Warren E. Burger: Well do you say that the percentages are not important, but what percentage of the total calls here do you regard as unrelated to narcotics?

Mr. John A. Shorter: We did not undertake an identification in the district court or in the Court of Appeals, a percentile breakdown.

Chief Justice Warren E. Burger: Do you challenge the government's analysis of it?

Mr. John A. Shorter: What we relied on was the testimony of the agent who supervised the Wiretap that the perception of the agents who were listening to the wiretap and the reports that were made to him and reports that he in turn forwarded to the Attorney in charge of the Wiretap that roughly 40% of the calls were narcotic related, this was his testimony.

The motion to suppress hearing that was held in the District Court in April of 1971.

Judge Widey (ph) , the judge who presided at that particular hearing adopted that finding and as a matter of fact, he made it the basis of the ruling that he ultimately entered suppressing the Wiretap that though there was testimony that 40% of the calls were narcotic related, 60% of the calls were not.

There was no effort, absolutely no effort made on the part of any of the agents conducting the wiretap to minimize the interception of any telephone call.

Chief Justice Warren E. Burger: How would you go about minimizing that Mr. Shorter, once you have found that 40% were clearly narcotics related, 39% were so ambiguous they could not tell and how do you minimize from there on?

Mr. John A. Shorter: Well, when we say that some of the calls were so ambiguous that they could not be -- that you could not tell what they related to, we think that is the determination that was made by Mr. Kellogg, our adversary indicates, the agents who compiled daily records and reports of the calls that were being made over the telephone, using their own judgment, using their own instincts referring to the logs of the calls that they created at the time that the calls were made, passing the information along to Mr. Cooper, the supervising agent.

Mr. Cooper was reviewing their logs, he was reviewing their reports and as the reports were going in, some days would be three out of six calls were narcotic related, some days would be 3 out of 19 calls.

So that at the end when we totaled up the number of calls that were intercepted and incidentally all the calls on this particular telephone were intercepted over 30 day period, with no effort, with no phone call ever being not recorded and not heard by the agents.

When you got to the end of the line, there was some compilation that Mr. Cooper testified to and that was that well our conclusion was if 40% of the calls were narcotic related that was not the issue in the case.

It was not the matter of percentages although percentages were important because a majority of the calls were not related according to the judgment of the agents to the narcotic enterprise.

They were not narcotic related conversations.

Now, there were instances of calls being made over the phone which were challenged in the district court as being subject to some reasonable effort at minimization and the statute that we are talking about we submit, it creates an affirmative duty on the part of the agents to conduct the wiretap and this is the language of the statute.

To conduct the wiretap in a way as to minimize the interception of calls not related to the criminal enterprise.

And in fact that is what the statute says.

So the statute creates a responsibility on the United States Attorney or the assistant who is supervising the tap, the supervising agent and the agents who are actually doing the intercept.

But even above that it creates a responsibility.

Unknown Speaker: Mr. Shorter, the statute does not say, that you have to eliminate calls not related to criminal enterprise.

Mr. John A. Shorter: No, it says it shall minimize.

Unknown Speaker: But it does not use the words, not related to criminal enterprise, not otherwise subject interception.

And there's also a subject interception because the court order authorized it.

Mr. John A. Shorter: All calls in that subject interception.

Unknown Speaker: It all happened during the 30 day period.

Like it is a little circuit.

Mr. John A. Shorter: It seems to be that way but clearly if we are going to use as our starting point.

What this court said in Berger, and what this Court said in Katz.

We would also use our starting point the overwriting and then compelling interest of privacy that must govern any approach to questions of wiretapping.

This is an intrusion and the whole purpose of the statute is to limit the intrusion.

Unknown Speaker: Well its also to authorize the intrusion.

Mr. John A. Shorter: It authorizes an intrusion.

On a very particularized and a very limited basis and for very limited reasons.

And the reasons are to gather evidence of criminality.

That it seems to me is the purpose for which the wiretap is authorized.

The wiretap is not authorized.

Unknown Speaker: They listen for a while and they find that almost one out of every two calls has an evidence of criminality in it.

When are they supposed to stop listening?

Mr. John A. Shorter: Well it is a judgment that has to be formed by the officers who are conducting the wire tap.

First of, they must a design on a desire to follow the law.

In this case, the court found that there was no purpose on the part of the agents.

That they are intercepting every call was done willfully and was in violation of order simply because the supervising agent did not clearly instruct the agents as to what their responsibilities were.

Unknown Speaker: Yeah, as if they were not going to listen to lawyer client calls, the occupation calls and (Inaudible) calls.

Mr. John A. Shorter: Yes, once they were obviously privileged.

Unknown Speaker: What else should he have told them?

Mr. John A. Shorter: Well, he should have told them that in the instance, well, after looking at the telephone calls between Geneva Thornton and her mother that proceeded for several days.

Unknown Speaker: Some of which contained reference to criminal activity.

Mr. John A. Shorter: No, it didn't.

Unknown Speaker: Well the Government says that it did.

It said two or three of them referred to --

Mr. John A. Shorter: That is an error because the only thing the government can say about any of the conversations between Geneva Jenkins and her mother was that in one of the conversations, the second conversation, this is the mother said to Geneva, I'll call.

And she also said something about a person named Ray.

In response of question that Geneva's mother asked about Bernis Thurmon, the man whom she was living with, where is Bernis and she said that Bernis is out taking care of business.

That is the gist of what the government points to --.

Unknown Speaker: Did not she say that, we do not talk about business on the phone to --

Mr. John A. Shorter: Well that is the mother in a later conversation.

When the mother said Geneva has something very important to tell you.

This is another conversation.

This does not have anything to do with this conversation about Bernis, taking care of business which is what Geneva said to her Mother, when her mother said, well where is Bernis.

This is her common law husband.

This is just like any mother in law would say well where is your husband, when he's out, taking care of business whatever that maybe.

But that is not a narcotic related conversation and the conversation that you are now referring to was a later conversation where the mother was saying to Geneva, there is something important that I want to say to you.

All the conversations are deeply personal.

This is a mother talking to her daughter, urging her daughter to leave the man that she's living with, bring you close and as a conversation go on they become, the personal nature of them is quite obvious.

The mother says to Geneva, there is something I want to talk to you about.

Now who knows what it is about.

I would submit that was something personal.

And Geneva said, well what is it.

The mother said, well it is something about business and I do not want to talk about business over telephone.

Agent Cooper during the first hearing admitted that the agents had no reason to believe, no suspicion that the mother was involved in any narcotics related activity.

Well, this was clearly what it obviously was a mother talking to her daughter, having battering types of conversations about family matters and other personal matters.

Later, in the hearing that took place a couple of years later, after the Court of Appeals had reversed Judge Widey for the first time.

His testimony took a slightly different view, and that was that after reading the transcript of the seven Geneva-Mother telephone calls, he believes that there was a basis for a suspicion that the mother knew something about the narcotic enterprise, which I would submit is not a basis to intercept conversations between even a person accused of crime, the mother, which is what it amounted to.

There was a call that Geneva made to the abortion clinic, or I believe it was an abortion clinic.

The agents justified intercepting that call because they did not know who she was going to talk to when she called there.

It did not occur to them perhaps that this might be a strictly confidential personal medical matter but they intercepted the call and they justified it on the grounds, that well she might have been calling over there, making some inquiry about some narcotics.

The pattern of the calls in this transcript were Geneva Jenkins did not call people about narcotics, to place orders for narcotics or solicit customers for narcotics, she received calls that were made to the phone for her husband, that was the pattern.

The clear pattern in this case, after examining the transcripts was that there were certain periods during the day, particularly at night, I believe from midnight until 6 in the morning, when I think there were over the 30 day period, there might have been an average of maybe one call per day from those particular hours and the question was put to the officers.

Well, did you not consider cutting off the wiretap, minimizing the intrusion at least during the night time period, and it never occurred to them.

Another thing that was pointed out, every call that was made from that phone, whether it be for time, whether Mr. Thurmon wanted to know what time of the day it was, what the weather was.

These calls were without any qualification totally intercepted.

Unknown Speaker: Because its almost impossible to minimize a call for the weather because by that time you finished getting the reports, it would take you that long to hold the plug out.

Mr. John A. Shorter: No it isn't, no.

Thats not correct.

Chief Justice Warren E. Burger: Well Mr. Shorter, you must be aware that there have been cases where conversations, innocent on their surface were conversations in code related to illegal activities.

That is a familiar phenomenon in this business, is it not?

Mr. John A. Shorter: Right and there came a time and they also testified to it where after listening to the calls between Bernis and some of the other alleged co-conspirators, they got to know the code that these individuals were using fairly well.

Like one of the guys would always call and say, well put me on 3rd St. or put me on 4th St. Meet me on 5th St. He has always used a numerical reference to a street.

He was not raising for any meeting at 5th St. he was telling Bernis that he wanted 5 units of narcotics.

Well, this was commonly known to the agents.

Chief Justice Warren E. Burger: Yes, but new codes are constantly evolving, are they not and it takes a quite a bit of listening before they can identify a pattern.

Mr. John A. Shorter: Right, I would agree that that is so but these people using this telephone were wedded to their endemic language.

Most of the agents in this case has participated in an earlier wiretap that had occurred in the District of Columbia during the the summer, the proceeding summer.

So they were familiar with street language in the District of Columbia.

They were also familiar by reason of having tapped to telephone involving some Spanish speaking people, within the year proceeding --utilized in this tab that what the codes were.

There was no problem about identifying the language and the codes that were used by the people in this case and that of course is not what argument about minimization deals with.

We say this that when a person became identified as an alleged co-conspirators, and first of all we have to remember of the scope of the operation that this wire tap reveal despite what was set forth in the affidavit, the operation in this case was a retail distribution set up and when I say a retail, it was purely a local distribution by one person and two lieutenants, small units of narcotics, people who would either resell or use them.

In this case it became very questionable because some of the people who were ultimately charged were drug users and they bought in small amounts.

That was the scope of the enterprise in this case.

And after a period of time, the same people were calling day in and day out ordering small quantities of narcotics.

The government had every justification in intercepting calls between the people who were identified as ordering narcotics over the telephone and there were justified in intercepting the conversations of new people until such time as they would get some understanding of what these people might be calling about.

What we complain about, its clearly set forth, that in the management of this wire tap the supervision was not precise, it was not correct, though there were --

Justice Thurgood Marshall: It was inefficient, the supervision was inefficient?

Mr. John A. Shorter: The supervision was inefficient.

Justice Thurgood Marshall: Is that enough?

Mr. John A. Shorter: No that is not enough.

Unknown Speaker: But what else do you have?

Mr. John A. Shorter: Well, what you have is that not only was the supervision inefficient but the activities of the agent was not self correcting in terms of that inefficiency.

The agents just ran and open wiretap in this case.

They seized every conversations without regard to the minimization requirement.

Every conversation except, for when the wiretap was broken or it was attached to the wrong telephone.

Their instructions about lawyer clients conversation was this.

This is what Agent Cooper supervisor said, if there is a conversation between an attorney and the lawyer calls there, somebody at that phone calls the lawyer, listen to the conversation and learn whether they are talking about a pending case.

Listen to the conversation, then report the conversation to Mr. Sullivan who was a supervising attorney, then Mr. Sullivan would decide what to do next, and it goes very fuzzy then.

Fortunately there were no attorney conversations intercepted over this telephone.

But the conversation to the abortion clinic was intercepted, telephone call from the bank to Mr. Thurmon was intercepted.

Calls relating to the time, the weather and to return to the questions it was asked me about --

Unknown Speaker: (Inaudible)

Mr. John A. Shorter: It conceivably did not hurt anyone, it was only indicative, it did not hurt anyone, it was only indicative of the fact that the agents decided to just intercept all the telephone.

Unknown Speaker: But the agent Lee did not test one--

Mr. John A. Shorter: But the realization was, and this was sensed by the agents that perhaps they should have exercised some caution, they should have implemented some plan of minimization because when they were asked as why they seized the conversations about the weather and time and whatever, the officer's answer was, well, we listened to the conversation because we were afraid that right at the end of the conversation they would doubt someone else and they would start a narcotics conversation.

That was their justification, not that well these conversations do not hurt anyone.

They offered another reason which was totally false.

Unknown Speaker: You think that is a reasonable explanation Mr. Shorter?

Mr. John A. Shorter: Not when you have a pin registered device.

They had a touch tone decoder that at the time that the telephone number was dialed, as soon as did the touch tone, at every plunk of every number that the caller makes the number flashes on a board that is sitting right before the person who is running the intercept.

He can see TI port 2525.

Unknown Speaker: What I am getting out is this Mr. Shorter, is it not also a pattern in the cases of this kind over the years, that the first five, seven or 10 minutes of the conversation is about the weather or cooking recipes or going fishing and then it turns to discussion of narcotics orders either in coded terms or in open terms.

Is that not a common pattern?

Mr. John A. Shorter: In the management of some voice chats, yes.

Unknown Speaker: And must not the agent on that wiretap taken into account that while they are talking about the weather or something else that if you listened long enough they will be moving to the main topic of the narcotics business.

Mr. John A. Shorter: Yes.

This frequently happens but we are speaking about a mandated part of a statute that requires minimization.

What does minimization mean.

It does not mean that the agents cannot intercept telephone calls, it doesn't mean that at all.

It does not mean that agents must eliminate certain calls.

It means that the agents have to be responsive to the invasion of privacy that is taking place and fashion in good faith.

That is the key here, fashion in good faith.

Some approach to the wiretapping, that is going to take place.

It is incumbent upon the supervising agent, the supervising attorney and the agents to formulate some plan as to how the wiretap is going to be managed.

Their illustrations throughout the cases, that show that agents and officers, supervising attorneys were sensitive to the invasion, the intrusion that is going to take place do in good faith, fashion such plans.

And the plan that it consists of something more that if a lawyer gets on the phone, listened to his conversation and report it and it consists of something more than saying, well if an attorney, I mean, if there's a doctor-patient conversation do not record that off the priest calls and the caller wants to make a confession over the telephone, do not record that.

I am speaking about something that is more practical, more meaningful, something more workable than just that kind of a direction to the agent.

The law requires it and the law requires that the government agents, formulate some reasonable approach to the wiretapping that they were about to do.

And that means in this particular case, some analysis and early analysis of the telephone calls between Geneva and her mother.

And particularly other phone calls between Geneva and people that you were talking.

There is an instance where she had a conversation with I believe is the woman called Gloria's mother, clearly a very banal conversation.

But the transcript of this case reflects that when Agent Cooper was asked about whether any thought was given to minimizing, that is reducing the interception of the calls between Geneva and her mother.

His answer was well, he was asked to articulate it in terms of the guidelines, this attorney client guideline, he said, well the guidelines that we receive and as we apply them to the case, did not have anything to do with frivolous conversations.

It dealt with the attorney client conversation.

So his answer in effect was that, whatever Geneva and her mother were talking about that was frivolous.

So, it is alright if we intercept that.

Our guidelines concerned itself with attorney client relationships, doctor-patient and that kind of conversation.

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

Mr. Allen.

Argument of Richard A. Allen

Mr. Richard A. Allen: Chief Justice and may it please the court.

Mr. Shorter today is engaged in the discussion of the ticket or interceptions in this case that has not reflected in either of the briefs in the case.

But in any event, Mr. Shorter has suggested, it seemed to me in his argument, a standard of what the government should have done to reflect exactly what the government did in this case.

As I understood his argument.

He said that when you have a converse, when you are listening to a conversation which involves a known party to the conspiracy, the government has reason to listen to it.

And he went on to say and by the way would emphasize the record in this case reflects that every conversation that was intercepted, one of the parties to the conversation was either petitioner Thurmon or his girlfriend Geneva Jenkins who was the co-defendant in this case and now both known conspirators, participants in the conspiracy.

Mr. Shorter went on to suggest that indeed when a conversation takes place between a known participant and a stranger to the agents, it is reasonable for the agents to listen to that conversation.

Now, it seems to me that if you want to get into an analysis of each particular calls, that concession would cover about 95% of them including the calls he mentioned in his argument.

Justice Thurgood Marshall: Mr. Allen, do you agree that every call is intercepted?

Mr. Richard A. Allen: Yes Your Honor, except for a short period of time when the agents apparently in a firm they hooked up to the wrong phone and we do not know how many calls were made during that time.

Justice Thurgood Marshall: Well, does that seem to support this argument that there was no discretionary?

Mr. Richard A. Allen: No Your Honor, I believe it does not, I think all this --

Justice Thurgood Marshall: I mean, the every single call.

Mr. Richard A. Allen: That is right, but I think all it reflects is that it was reasonable to intercept every single call.

Justice Thurgood Marshall: Why?

Mr. Richard A. Allen: Well, for a number of reasons among other things, the agents at the time and after the fact that seems to be truth that 40% of the calls were clearly narcotic related --

Justice Thurgood Marshall: Well, that fact does not help me, because if you take a baseball bat and crack a man's ear and look at it and find dope, that justifies cracking the skull.

Mr. Richard A. Allen: Well Your Honor, we are not engaging in that kind of an analysis.

We are trying to decide whether it is reasonable --

Justice Thurgood Marshall: My point is the statute says use some discretion, right?

Mr. Richard A. Allen: That is correct Your Honor.

Justice Thurgood Marshall: And here they used none.

Mr. Richard A. Allen: Your Honor, here they intercepted every call.

Justice Thurgood Marshall: Well, does not that tend to say that no discretion was used?

Mr. Richard A. Allen: No, Mr. Justice Marshall, I do not think it does, there is a fundamental logical fallacy in that conclusion which is one that the District Court engaged in.

In other words, consider the simplest case where all they have intercepted is one call and it is a clearly narcotics related call.

Now, would you say in that case that that evidence, the agent has not used any discretion.

Justice Thurgood Marshall: It is nothing to do with my question.

It is the one call here --

Mr. Richard A. Allen: There are 384 calls, all of which --

Justice Thurgood Marshall: That is right, it is lot different from one --

Mr. Richard A. Allen: All of which in our analysis indicates.

Justice Thurgood Marshall: All of which had do dope.

Mr. Richard A. Allen: No Your Honor, not all of which had to do with Dope, but all of which were reasonably intercepted on the anticipation that they might have something do to with those.

With the reason --

Unknown Speaker: So, the other one would be a frame up or something?

Mr. Richard A. Allen: Well, the weather calls stand by themselves and I understand there were very few of those, perhaps five or six, they were perhaps 20 calls to find out what time it was which is about a five minute call and the agent has barely time to turn off the machine.

The weather calls are again, very short calls and the agents, it is our position that the agents were not unreasonable in concluding that listening to a very short weather call where by the time you head off your headphones and turn off the machine, the call is going to be over, the agents that seems to us are reasonable in concluding that when they want --

Justice Thurgood Marshall: Is there anything in my question about taking off anything, my question involved is hitting the switch.

Mr. Richard A. Allen: Well, it's more – to even turning off the recorder by the time, by the time they reach over to turn off the recorder to call us --

Justice Thurgood Marshall: Well, why in the world did they put this provision in the statute?

Mr. Richard A. Allen: They put the provision in the statute and we have gone for a moment, literally the importance of the privilege.

They put the provision in the statute to accommodate during important individual interest and privacy.

Listening to a recorded weather call that anyone can listen to simply does not infringe upon anyone's privacy Your Honor.

Justice Thurgood Marshall: But why did not the statute say that?

The statute does not say that does it.

Mr. Richard A. Allen: Well, the statute did not purport to enumerate all of the infinite circumstances in which -- the infinite kinds of call which an agent might --

Justice Thurgood Marshall: Do you think we should?

Mr. Richard A. Allen: No Your Honor, I think we have to look in and see whether conduct of the agents was reasonable and whether it violated the kinds of things the statute was designed to --

Justice Thurgood Marshall: Well, do you think that where you turn this is voice on, 24 hours a day for 30 days, if that is okay.

Mr. Richard A. Allen: It is okay Your Honor, if all of the calls that came through when they were listening to, they had reasonable grounds to listening to.

Chief Justice Warren E. Burger: You tell us that every call intercepted involved on one end of the line, one or the other of the two defendants in the case.

Mr. Richard A. Allen: That is correct, one of the -- either Bernis Thurmon who is the petitioner or his girlfriend who is a co-defendant was --

Unknown Speaker: Would they are used to having you tap somebody's phone that you most of the time (Inaudible)

Mr. Richard A. Allen: That is correct Your Honor and in cases where you hear him, it is – you have greater reason to listen to his conversation or some greater portion of it, than you do when you listen to as a ten year old daughter.

Chief Justice Warren E. Burger: Yet in the case that we heard a several years ago, the evidence showed that there were numerous calls to the tapped number where the person answering the phone was not the person residing in that place, but someone else there taking orders of narcotics.

Justice Thurgood Marshall: That case was the Mayer's wife in Chicago.

Mr. Richard A. Allen: I do not recall the case right offhand but --

Chief Justice Warren E. Burger: That one, it is a business enterprise as in the narcotics business is, that would not be unusual to have some relief.

Mr. Richard A. Allen: Well, that's correct Your Honor and that is one --

Unknown Speaker: It is answering the phone to take orders.

Mr. Richard A. Allen: That is right, that seems to us that that is something an agent can reasonably take in to account, but in any event, in this case, the agents from the beginning knew that petitioner Thurmon was the target of the tap and after a few days they knew that his girlfriend was taking orders on phone.

The principal issue in this case as we have been discussing is whether the agents violated the minimization requirements in Judge Smith's orders.

Now, as I understand petitioner's arguments, the argument is essentially as follows that the minimization requirement of the statute imposes a two pronged test, both of which must be met for any interception is lawful.

The first prong is according to the petitioners that the agents engaged in what they call good-faith efforts at minimization and the second prong is that the interceptions be objectively reasonable.

Although they also assert that the interceptions in this case were not objectively reasonable, they have relied almost exclusively on the argument that there were no good-faith efforts in this case to minimize.

Our response to their argument about good faith efforts is two-fold, we have two independent responses.

Our first position is a legal position, that the alleged good-faith or the lack of good-faith, subjected good-faith of the agents conducting an interception is not a determining factor in deciding whether they have complied with a statute and the minimization orders.

Our second position is a factual position and that is that the record in this case simply does not support the claim that the agents in this case had bad faith or subjectively intended to violate the provisions of Judge Smith's orders including the minimization provision.

Now, the first issue which is legal issue has importance beyond the facts of this case and should be discussed first if not principally.

Legal question as I suggested to Mr. Justice Marshall, seems to us can best be put in focus by considering the simplest case.

You have agents who obtain a court order to intercept conversations based on probable cause, the John Smith, the owner of the telephone, the subscriber to the telephone is engaging in his narcotics business over that telephone and they obtain a court order not the court order provides pursuant to the statute that the interception should be conducted in such a way as to minimize the interception of conversations not otherwise subject of the statute.

The order said is for five days and during that period there is one call that comes over the phone and that is a call from John Smith and he starts right off talking about his narcotics business and they listen to it and they intercept.

Now, suppose later on there is a suppression hearing and agent testifies that his supervisor instructed him to listen to everything that came over the line.

Now, as I understand the petitioner's position, they would contend that the interception of that call which we would submit is clearly reasonable, is nevertheless unlawful because the agent who intercepted it would probably have intercepted some other call that was never made in different circumstances.

Now, it is our position, that is our central position that there is simply no basis in the statute or in general principles of search and seizure law for that position.

We can not see any basis for arguing that that agent in my example failed in the words of the statute, “To minimize the interception of communications not otherwise subject to interception.

Unknown Speaker: But Mr. Allen, supposing the judge's order had left out any command to minimize and said, go ahead and intercept everything and then they would intercept it one a bit proper, would that have been a proper way?

Mr. Richard A. Allen: No Your Honor, I do not think it would because the statute provides as one of the ground for suppression, the allegation that the order is defective on its face and in your hypothetical the order would be defective on its face.

In other words, the interception that resulted from that order would have resulted from an effect --

Unknown Speaker: Can you give me an example of a violation of minimization order written in the words of the statute that would result in suppression?

Mr. Richard A. Allen: Yes, suppose for instance, the agents have an order to investigate my John Smith example, and he is out one night and he has a twelve year babysitter and she makes a call to her boyfriend and the agents have no reason to believe that she has anything to do or any knowledge with the operation, but nevertheless (Inaudible) by happen stance, the babysitter says, “Well, you know my boss Mr. Smith left some narcotics over here.”

We would admit that in that circumstance, it was unreasonable for the agent to listen to the conversation and the evidence that happened to develop from it ought to be suppressed.

Chief Justice Warren E. Burger: In other words, you are applying a sort of probable cause test that when the babysitter is calling her boyfriend, there is no probable cause of quotation marks to believe that they are going to talk about narcotics, is that it something like that?

Mr. Richard A. Allen: Well, I would not put the word, I would not put that label problem was cause --

Chief Justice Warren E. Burger: We put in quotation marks.

Mr. Richard A. Allen: Well, I would prefer to use the word, they had no reasonable expectation that their interception would be relevant or the conversation would be relevant.

As I say our position is fundamentally that good-faith and lack of good-faith can not be relevant consideration, it is true under the statute and it is true as a general matter of Fourth Amendment law.

Justice Thurgood Marshall: Well, suppose a twelve year old had called an abortion clinic and before you answer that, you know this is what we did, there is a little over that.

Mr. Richard A. Allen: If a twelve year old in my example had called an abortion clinic, the agent would have improperly intercepted it.

If Geneva Jenkins who is a co-defendant and a participant in the conspiracy had made a call to some organization that had never come up in the tap before, I suggest that it is not unreasonable for the agents to listen to her short conversation.

Justice Thurgood Marshall: Well, why cannot the statute say that if you found the proper papers, you can get a tap on any person's wire, --.

Mr. Richard A. Allen: If the statute said that I think it would be unconstitutional Your Honor.

Justice Thurgood Marshall: And if they did it, would not it be equally as unconstitutional?

Mr. Richard A. Allen: No doubt about it.

Justice Thurgood Marshall: Well, is that what happened in this case?

Mr. Richard A. Allen: No Your Honor, in this case the --

Justice Thurgood Marshall: They had listened to everything, I thought you said --

Mr. Richard A. Allen: They listened to everything in circumstances that made listening to everything reasonable.

Justice Thurgood Marshall: But they have listened to everything.

Mr. Richard A. Allen: That is correct Your Honor and circumstances that made it reasonable.

Justice Thurgood Marshall: The circumstance was that whether they were the guilty people.

Mr. Richard A. Allen: Pardon me.

Justice Thurgood Marshall: They were the guilty people, is that the reason?

Mr. Richard A. Allen: No, no Your Honor, the guilty reason – the reason was that the conversations they were listening to were either narcotics related, but they were always by somebody who was involved in the conspiracy and they were either narcotics related, there they were sufficiently ambiguous to give the agent summaries and let me give you an example.

Agent Cooper who was the primary witness in the suppression hearing, testified that he conducted this interception on the same basis that he conducted another interception recently, and he said that for instance, in that interception we had a case where two people, a woman who is talking over the phone would always call her friend and when she called a particular friend, she would always talk about her illness.

Well, after a time or two of that, we stopped intercepting that kind of conversation, I mean we had developed he reason to believe that the interception of that conversation would not help our investigation.

Seems to me that that is the reasonable way to go about it.

Unknown Speaker: The agent says, (Inaudible) and we have been listening to that and it was not the lawyer, it was the (Inaudible).

Mr. Richard A. Allen: No Your Honor, I do not think in this --

Justice Thurgood Marshall: (Inaudible)

Mr. Richard A. Allen: In this case it was clear that one thing they were going to listen to calls to lawyer.

Justice Thurgood Marshall: They did not judge that.

Mr. Richard A. Allen: Pardon me.

Justice Thurgood Marshall: They did not judge anything at that point.

They have got the order, (Inaudible).

Do you think, that they are going to hear everything, would they be listening to every conversation?

Mr. Richard A. Allen: They told the judge implicitly, they told the judge when they applied to the order, that they wanted an order to intercept conversations that contained information about the narcotics conspiracy, implicitly they told the judge that they would act reasonably which in our view they did.

Unknown Speaker: Mr. Allen, let me go back to your twelve year old babysitter, would you say they should not listen to the first conversation of babysitter?

Your example of the illness by the other person and listen two or three kinds and decided that had done it by the pattern.

Mr. Richard A. Allen: Well, that would depend on the circumstances, the thing for me the first as a general presumption, it seems to me that it conversation between a twelve year old babysitter and her thirteen year old boyfriend, it seems to me although their maybe circumstances to the contrary that that kind of conversation is not going to be relevant.

Unknown Speaker: Maybe they have a twelve year old answer the phone and they develop a pattern, I mean the twelve year answer the phone, talk to her couple of minutes and then turn the phone over to the parents who are going to talk about drugs and how are you going to avoid that sort of thing if you say that as soon as we hear a minute of juvenile conversation, we turn it off.

Mr. Richard A. Allen: Well, it would depend on the circumstances I think, in some circumstances it maybe reasonable to listen to a juvenile's conversation.

Unknown Speaker: What about a 32 year old babysitter.

Mr. Richard A. Allen: The 32 year old babysitter in this case was a participant in the conspiracy.

Justice Thurgood Marshall: No, I mean in the case you are talking about.

Mr. Richard A. Allen: Oh, a 32 year old babysitter, well, it would depend if you knew it was babysitter, you knew she had nothing to do or no knowledge of the conspiracy, then probably you ought to turn it off, or there maybe circumstances in which you can listen to it.

Justice Thurgood Marshall: One more, you convince me that this should not have put that in statute --

Mr. Richard A. Allen: The minimization --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Richard A. Allen: The minimization requirement.

Justice Thurgood Marshall: But the trouble is that Congress did put it --

Mr. Richard A. Allen: Well, some of the judges on the Court of Appeals and the Mr. Justice Brennen and Mr. Justice Marshall have expressed concern that if our position concerning that the proper standards should be objective reasonableness were adopted.

There would be a danger that interceptions would then be validated by what they turn up.

We submit that there is -- that that concern is certainly understandable, but that it does not accurately reflect our position or the analysis the Court of Appeals engaged in this case.

It does not reflect our position because as I was stating to Mr. Justice Stevens, our position is simply that the reasonableness of interceptions has to be based on what is going on at that time and that if it is unreasonable for an agent to listen to conversations in view of what he is – although the inputs, sensory inputs on him, then if by chance, it turns up evidence is our position that that evidence should be suppressed and that essentially is the analysis of the Court of Appeals engaged in this case.

Essentially, it is no different than any analysis where the courts try to decide for example, whether a policeman was justified in arresting someone or stopping and frisking someone on the basis of circumstances at that time.

Even though, that person may wind up to have a contraband or weapons on.

Apart from our legal position --

Chief Justice Warren E. Burger: As to stand you are going to rely on your brief.

Mr. Richard A. Allen: Essentially Your Honor we were relying on our brief as to standing unless the court has any questions about it.

Apart from our legal position, our factual response to the petitioner's claim about lack of good-faith efforts is that the record simply does not support the claim of the agents here acted in bad-faith or intended to ignore their minimization obligations.

We have cited in our brief the testimony of agent Cooper to the effect that he was aware of the minimization requirements that he instructed his agents with respect to them, that he never instructed his agents to listen to every call, and if they had heard the cause it appeared to be unlikely to relate to the investigation, they would have turned them him off and I would not burden the court with recitations to this transcript.

But I would only point out that the petitioner's claim to the contrary and the District Court's finding to the contrary is based on logical fallacy that it is based on testimony that does not logically support the conclusion.

For example, again to take the simple example of the case where over the period of intercept, only one conversation is intercepted and it happens to be reasonable to intercept it because it is clearly crime related.

Suppose the agent in that case at a suppression hearing had been asked repeatedly as agent Cooper was asked in this case.

Well, did you ever make any efforts to minimize the interception of conversations?

Did you ever consider your minimization obligations?

Can you point to any instance in which you exercised discretion that resulted in the non recordation as discretionary matter as to what was overheard.

If the agent in my example had given negative answers to that question, that would not reflect that was operating in bad faith, it would only reflect that he intercepted the only call that came over the line.

And that is essentially the basis for the petitioner's claim on bad faith and the basis for the District Court's analysis.

If the court accepts our position that the proper standard is objective reasonableness, the question remains whether the interceptions in this case were objectively reasonable and in their briefs the petitioners do not seriously challenge the Court of Appeals conclusion that it was objectively reasonable to intercept all of the calls in this case.

And they do not point at least in their briefs to any calls that should not have been intercepted or any reasons as to why they should not have been intercepted.

But the court may be interested in the question more generally of general considerations that apply to determining whether interceptions are reasonable or not reasonable and at the outset I want to stress again that it is not our intent to validly importance of the statutory minimization requirements.

We recognize that they are designed to serve and accommodate important individual interest in privacy.

But how those interests can best be implemented in each particular case often poses some very difficult problems.

Now the Court of Appeals started with a proposition that seems clearly correct to us, that the very nature of interceptions that are authorized and limited by the statute requires monitoring agents to listen to at least some portion of every call before they can make any judgment as to the likelihood that the call is going to be relevant or irrelevant.

Now how much of the call may then be reasonably intercepted depends on a wide variety of circumstances including what the agents know about the callers, the scope of the criminal enterprise, the degree of coded language employed in the call and so forth.

And many of those considerations can be applied only after the agents have been able to develop some patterns among the calls.

The court of appeals have developed a number of relevant factors including those I have just mentioned but it would be impossible to enumerate an exhaustive list.

In some kinds of cases, it may be possible for agents to develop more or less formal procedures or guidelines with respect to how they are going to go about and intercept.

For example, in a gambling case, if they have reasonably if the John Smith is conducting his gambling business from a certain telephone, from his residential phone but has three small children or three teenaged children, it may be possible for the agents to develop guidelines and say do not listen to the calls of the children but listen to the calls of John Smith because in a gambling case, most of those kinds of calls are simply calls where the caller calls in and places a bet, right off the bat, they go right in the business.

In other kinds of cases like narcotics and especially particular like narcotics conspiracies where there many unknown participants and where one caller a always a known participant.

It is much more difficult for the agents to establish guidelines and they may have to rely on an ad hoc judgments about the nature of the calls they are listening to.

And this case, I think reflects that narcotics conspiracies present some unique difficulties to agents conducting interceptions under the statute.

In narcotics conspiracies at least like this case it is very typical that the beginning portion of the conversation is largely ambiguous or irrelevant and then the participants may refer to a pseudo cause which means a delivery of narcotics.

So it is much more difficult in this kind of case for agents to decide with any great degree of certainty, what kind of conversation they are listening to or to apply any formal procedures with respect to when to turn them off.

With respect to the additional issues in this case concerning the scope of the suppression remedy and the standing of petitioner Scott we rely primarily on the arguments we've addressed in the brief.

I would only emphasize our response to the petitioner's argument that if as we contend, the statute only requires a suppression of conversations that should not have been intercepted because they are irrelevant.

Then agents will not be deterred -- they will not be deterred from listening to every conversation.

That argument seems to us to misconceive the traditional purpose of the exclusionary rule which is not to punish police but rather to remove their incentives to commit unlawful acts.

Our position is fully consistent with that traditional purpose.

Any interception that should not have been intercepted should be suppressed thereby removing the agent's incentive to intercept communications and violation of minimization requirements.

But beyond that there is even less reason in this context or a need in this context to expand the suppression remedy because this statute unlike the Fourth Amendment context imposes significant, affirmative sanctions on officers who violate their statutory obligations in bad faith, civil and criminal sanctions.

Unknown Speaker: Plus there is a way to read this statute Mr. Allen, a question while ago by my brother Stevens indicated that would make it both semantically meaningless as well as practically meaningless because the statute says -- imposes an obligation to conduct the surveillance in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter and all the communications are otherwise subject to interception under this chapter under the court order.

Mr. Richard A. Allen: Arguably Your Honor although the statute, specifically exempts I believe privileged conversation.

Unknown Speaker: Yeah everything except evidentiary privileged conversation.

Mr. Richard A. Allen: That is a possible way to read the statute Your Honor.

Unknown Speaker: No, in fact, dramatically that is the way to read it.

Mr. Richard A. Allen: That is correct.

We would not rely on that reading.

It seems to us that the purpose of the statute read as a whole is to authorize only certain kinds of interceptions of certain kinds of conversations and that was probably what the minimization provision we are referring to.

That is if you receive an authorization to intercept to obtain narcotics conversations, it seems to us the statute probably meant that you were not supposed to receive to intercept or you are supposed to make reasonable efforts to minimize the interception of non relevant conversations.

Unknown Speaker: Mr. Allen, do you rely at all on an argument.

I do not know if it is permitted or not that you are investigating people who are going to be potential defendants in a criminal trial, presumably they make him up with some kind of an alibi, or they may come up with stories that would try to explain ambiguous transactions that even though a particular conversation is not crime related may give you information in the nature of a diary or something about the trial that would help you at the trial.

Mr. Richard A. Allen: We would contend Your Honor that the authorization under a court order extends to the interception of communications for the purpose of developing evidence relevant to the investigation.

Unknown Speaker: Including impeaching evidents, potentially impeaching evidents.

Mr. Richard A. Allen: Should think so Your Honor although I want to think about that a little longer.

Unknown Speaker: Foreseeing a possible defense at a criminal trial such as in alibi if he says I was vesting -- my mother at 2 o' clock through the afternoon, you could say well as a matter of fact, you were on the telephone talking to your butcher.

Mr. Richard A. Allen: In certain circumstances that might be reasonable although I would not want to take it too far because if you took that too far you could intercept everything.

Unknown Speaker: Exactly.

You generally do not know what a person is going to say by way of alibi, until the trial begins.

Mr. Richard A. Allen: Well, that is right.

But we would not contend that the statute should be construed to let us intercept everything for any reason, only for reasonable reasons.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Attribution:

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Featured:

United States v. Donovan - Oral Argument

Sun, 08 Aug 2010 17:07:10 +0000

Case:

United States v. Donovan

Media File:

75-212_19761013-argument.mp3

Related Transcript:

75-212_19761013-argument.xml

Transcript:

Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will hear the arguments next in No. 72-212, United States against Donovan.

Mr. Frey, you may precede whenever you are ready.

Mr. Andrew L. Frey: Mr. Chief Justice, and May it please the Court.

This case is here on the government?s petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit, which affirmed an order of the District Court, suppressing certain evidence obtained during wire interceptions as the five respondents in this case.

There are two separate issues, one of which relates to three of the respondents? and concerns the obligations of the government to identify certain persons in the application and of the Court to identify them in the order authorizing the wire interception.

The second concerns the obligation of the government to supply names to the District Court for purposes of discretionary service of inventory notice after an interception has terminated.

And underlying both these issues, assuming the government did not live up to its responsibilities under the statute is a question whether suppression of the evidence is an appropriate remedy.

In November 1972, a Federal District Judge in Cleveland authorized the interception of wire communications relating to gambling offenses over four telephones.

The application for this authorization was supported by an extensive affidavit, which takes up 48 pages of the appendix in this Court.

The principle targets of the investigation were three suspected bookmakers, Kotoch, Spaganlo, and Florea, and both the application and the court order named them as well as three other individuals who were expected to be overheard during the interceptions discussing the gambling enterprises.

Several weeks after the termination of the initial interception, application was made to the Court for authorization for an extension of the interception on two of the four original phones and also for monitoring of the third phone.

The application and order named two new persons and deleted the names of three individuals who had been identified in the first go around.

Respondents? Donovan, Robbins and Buzzacco were not specifically identified in either, the application or order, original or extension.

The district court in a suppression hearing, upon review of various items or information in the government?s possession of the time, the renewal application was filed, determined that there was in fact probable cause to believe that these respondents would be overheard discussing illegal gambling conversations during the second interception and because they have not been identified in the application and order, the District Court suppressed their conversations from use in evidence against them, the Court of Appeals affirmed.

As to respondents Merlo and Lauer, there is no question about the initial propriety of the overhearing of their conversation.

However, after the interception was completed, the government supplied the authorizing judge with the names of 37 persons who had been identified as being overheard during their surveillance.

Service of inventories on these persons was ordered by the Court and was carried out.

Subsequently, the government realized that it had omitted to inform the judge of the identities of two other persons and it obtained an amended order and served additional inventories.

However, Merlo and Lauer were not named to the judge and did not receive a service of inventory.

They were thereafter indicted and after the indictment, they as well as all the other defendants were given access to the orders, the application and the transcripts of the intercepted conversations.

Everybody had access at the same time.

The District Court ordered suppression of the intercepting conversation of Merlo and Lauer because if the government?s failure to supply their names to the judge, so that the judge could determine whether discretionary notice of the taps should be served upon them.

The Court of Appeals affirmed.

Neither court below found at the failure to supply the names for inventory purposes was anything other then inadvertent or that these respondents did not in fact know long before they were indicted that they had been overheard, or that there was any prejudice to them as a result of the delay in official notification of the hearings.

Decision of the Court of Appeals stands rather for an absolute rule requiring suppression regardless of lack of governmental misconduct or prejudiced self-defense.

Now, of the two issues before the Court, the one concerning the identification of persons in the application and orders by far the most important to the future administration of the Act and it is to that issue that I plan to devote the bulk of my argument.

The inventory issue was less important.

It is now the government?s policy, even though we do not believe the Act compels us to do so, to supply the supervising judge with the names of all overheard persons as to whom we believe there is any reasonable prospect of indictment.

Perhaps the approach of the Court of Appeals for the Ninth Circuit which suggested that rather than submitting specific names, we should submit categories of persons who had been overheard is a better policy would be more helpful.

The District Court in exercising its discretion and we would have no objection to following any reasonable policy that the District Courts determine would be useful to them in this area.

Chief Justice Warren E. Burger: As to the inventory notice?

Mr. Andrew L. Frey: As to the inventory notice, that is right.

However, whatever the rules may be, suppression of the evidence is an inappropriate and unauthorized response in these cases and it is on that point that I want to make a few brief observations before I turn to the identification question.

First of all section 2518 (10) (a) which is the suppression provision and which has set forth, I believe at page 5(a) of the appendix to our brief, authorizes District Courts to suppress, on one of three grounds; that the communication was unlawfully intercepted, that the order of authorization or approval was insufficient on its face, or that the interception was not made in conformity with the order and none of these grounds is applicable to a postintercept failure to comply with the procedures that follow and it is our argument that you cannot suppress under the statute for a failure to comply with post intercept procedures.

Now, I point out in this connection that we at Congress wish to exclude evidence for postintercept defects, it is specifically so provided.

For example, Section 2518 (8) (a) which is not in the appendix, concerns the sealing and it provides that after the interception is terminated, the tapes must be turned over promptly to the District Court for sealing and it further provides that the absence of seal called for in that Section or satisfactory explanation for the absence means that the evidence is to be excluded, that is a specific exclusionary rule dealing with a postintercept failure.

Similarly and more directly in point in this case is Section 2518 (9) of the statute.

That is the provision that sets forth the congressional requirement of notice and to see them to the admission of evidence in a case that is notice to the defendant of the fact that he has been intercepted.

That provision says that the contents of any intercepted wire or oral communication or evidence derived there from shall not be received in evidence or otherwise disclosed, unless each party not less than ten days before the trial hearing or preceding has been furnished with a copy of the court order accompanying application etcetera.

That is congress had said, what is necessary, respondents Merlo and Lauer have gotten the information that is necessary, it is still more then ten days before their trial, we think there is no ground, therefore, for excluding.

Chief Justice Warren E. Burger: And this never did go to trial that it because of District Court (Voice Overlap).

Mr. Andrew L. Frey: Not as to these respondents, they were served.

One final point in discussing the Giordano, Chavez analysis here, of course the Courts have focused on the question of centrality.

Now, we do not deny that the inventory notice concept is a central part of the statute, but that to us does not answer the question that must be answered before determining whether to suppress and that is whether the particular kind of defect in the procedures is itself so central to the statute, that is here whether the fact that only 39 people rather than 41 people were named is so central to the statute in the absence to prejudice to the defendants, that suppression is an appropriate remedy.

We say clearly is not.

Now turning to the naming issue; the Court of Appeals held that the government?s obligation to identify extends to all persons whom a government has probable cause to believe at well over here talking over the monitored telephones about the criminal activities under investigation.

We submit that the language and structure of the Act, its legislative history and substantial policy considerations dictate a much never interpretation of that requirement.

I would like to begin by saying a word about the dictum in Kahn because several Courts of Appeals that have examined this question have really stopped their inquiry after they looked at the dictum in Kahn.

Kahn was a very different case.

Kahn concerned the question of who among the people whose phone was being monitored had to be named in the order and Kahn held that the only where you have probable cause that you have the name somebody who?s phone was being intercepted.

Kahn did not concern the question of your responsibilities to name people who are calling into the intercepted phone from phones that are not themselves being monitored.

It was not briefed.

It was not argued.

It was not necessary of the Court?s decision and I do not think a fair reading of the Kahn dictum suggests that the issue was in anyway for (Voice Overlap).

Chief Justice Warren E. Burger: Mr. Frey, in Kahn, Mrs. Kahn?s phone was not being monitored.

Mr. Andrew L. Frey: Oh! Yes it was.

Chief Justice Warren E. Burger: It was Mr. Kahn?s phone.

Phone was ? many times he was calling into and he was away because she was (Voice Overlap)

Mr. Andrew L. Frey: Well, actually she was at home but the point of our position is that?

Chief Justice Warren E. Burger: The daughter too as I remember.

Mr. Andrew L. Frey: Well, that is right and what we are saying is the naming obligation extends to people who are users of the telephone that is being intercepted in the case of a telephone interception.

Chief Justice Warren E. Burger: (Inaudible) users at the telephones.

Mr. Andrew L. Frey: Certainly, the Kahn family?

Chief Justice Warren E. Burger: No, no I mean in the case we get before us.

Mr. Andrew L. Frey: No, they were not.

Their telephones were not being monitored.

They were calling in from outside.

Chief Justice Warren E. Burger: But they were communicating over the phone being monitored, just as Mrs. Kahn was.

Mr. Andrew L. Frey: Well, yes but the difference.

Chief Justice Warren E. Burger: Is it the difference on which instruments you use it.

Mr. Andrew L. Frey: The difference is on which end of the phone that is when?

Chief Justice Warren E. Burger: Was there is a statute (Inaudible).

Mr. Andrew L. Frey: I think it does, yes and I intend to get to that.

Chief Justice Warren E. Burger: Just to make one more point clear, Mr. Kahn was away from, no matter whatever it was, the phone was and Mrs. Kahn was one who was home but he was not in the place where...

Mr. Andrew L. Frey: But it was the phone at the family that is these phones were the phones of the Kahn family.

Argument of Unidentified Justice

Unidentified Justice: It was the Kahn household telephone.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: It was the Kahn household telephone and our position would be that, it is not unreasonable to require the government to identify those people whose phone is being intercepted and I think the statute focuses as I will get to in just a moment on whose telephone is being intercepted, that is the person the Congress was talking about in the statute.

Section 2518 (1) (b), says that the application must state ?The identity of the person, if known, committing the offense and whose communications are to be intercepted.?

Now, we submit that in this case that requirement was fully met when the application named Kotoch, Spaganlo, and Florea.

These were the targets, these were the persons who were expected to be overheard talking from the phones that were being monitored about the illegal activities.

Now, the first thing to notice, I have stressed, is the singular were the person in the statute.

Now, in the New York statute which was the model for this particular provision in a federal statute and which is quoted cited in Berger, in the opinion in Berger, the New York statute provided the person or persons had to be identified.

Congress dropped four persons out of the federal statute only the person need be identified.

Now we think if the congressional notion was it they would be one target in these cases that it would be the target?s phone that would be monitored and that that was the person who should be named, if that person was known.

The critical distinction and its one we believe is clearly built into the statute and it is when we urge the Court to recognize in its decision, is between the users of the telephone that is being monitored on the one hand and all other persons throughout the world who make converse from unmonitored phones on the other hand, the naming of requirement applies to former in our view and not to the later.

Now, there is internal evidence in the statute, I think that supports this quite clearly.

If you look at page 2 (a) of the appendix to our brief and 3 (a) we set forth there Subsection 2518 (3) which talks about what the judge must find in determining the issue on authorization.

A Subsection (a) says the judge must find that there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense.

Subsection (d) which ties in with this says that and I am going to edit it slightly, there is probable cause for belief that the facilities from which, or the place where the wire communications are to be intercepted that those facilities are being used or about to be used in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

Now, the such person that Congress was talking about there was the individual who has committed the offense.

The structure of the statute ties a particular individual, a particular telephone, a particular offense and we think that, that is further reinforced by Subsection four which deals with what the contents of the ?authorizing order shall include?.

Rebuttal of Unidentified Justice

Unidentified Justice: You agreed, did you not in your brief that if somebody regularly uses the phone, they should be named too?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, that is right.

I think if we expect over here that is, if let us say as may have been in the case and this case one of the targets uses his girlfriend?s telephone to receive bets or relying information or something like that, we would agree that, that may be a case where he should be named, but that is because he is a user of the phone that is being intercepted.

Rebuttal of Unidentified Justice

Unidentified Justice: You putting it not on to the person, but the instrument owner?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: We think that the identification requirement is tied to the instrument and to the people who are likely to be using that instrument and not to everybody in the world and I will get in little bit to some of the practical reasons for that.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Counselor, you talk about everybody in the world.

There is no claim yet to name everybody, it is only those who are believed to be committing the offense?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, I understand to that could be, I am not suggesting we have?

Rebuttal of Unidentified Justice

Unidentified Justice: Be limited to those if the government has reason to believe are committing the offense.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: But when I am talking about everybody in the world, I making distinction between the users of the phone.

I understand the probable cause is a requirement in any event, if we do not have probable cause, we do not have to name it.

Rebuttal of Unidentified Justice

Unidentified Justice: Let me make it specific.

Supposing in the Kahn case the government had known which they did not, in advance that Minnie Kahn was a partner in the gambling venture.

You say she would not have been named?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: No, I think we would say that she should have been named.

You can argue about whether when you name on?

Rebuttal of Unidentified Justice

Unidentified Justice: Just so I understand why would you concede that?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Because it was her telephone that was being monitored.

Rebuttal of Unidentified Justice

Unidentified Justice: By her telephone, you mean she was a regular user of the phone and it was not listed in her name.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: What we expected, when we overheard, assuming we had probable cause, we would have expected to overhear her engaging in criminal conversations from that phone rather then calling in from an outside.

In the Kahn case there was another person.

a layoff bookie in Indiana, who was one of the people who was in this category, this rest of the world category that I am talking about and there was no briefing or argument in Kahn, he was not indicted and there was no question as to whether he should have been named, although arguably there was probable cause to name him, but we think that he is in a different position from Mrs. Kahn.

Rebuttal of Unidentified Justice

Unidentified Justice: Let me just be sure I understand, why you concede she would be properly named?

Is it because she lived there or she was a regular user of the phone?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Because she is a user of the phone, because on hypothetical we have probable cause to believe that we will all overhear her engaging and conversations about the criminal activity from the phone that is being monitored.

Rebuttal of Unidentified Justice

Unidentified Justice: Now, what does the statute talk about from the phone?

That is what you seem to emphasize which instrument is used?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, the statute says the person arguably.

Rebuttal of Unidentified Justice

Unidentified Justice: But you have just conceded that it can be two persons.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: The purposes of our construction, I mean in another case, the question of what would happen if we named only one of two people which is an issue for instances in Doolittle case where there was a Doolittle who was the principle target and there was a fellow name Sanders, who was an employee of Doolittle?s, who worked in Doolittle?s club.

That poses different questions that are not presented here, our policy normally now is to name such person?

Rebuttal of Unidentified Justice

Unidentified Justice: I am trying to understand what you have think the statute it means, and I think you have conceded that the singular aspect of it is really not controlling.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, I am suggesting that the Court could conclude that it is not absolutely controlling, but I still think it is very significant because the statute ties the person to the facility, that is being intercepted.

In Subsection four at the concluding paragraph of 2518 (4), it says that an order authorizing the interception of wire or oral communications shall direct that say the communication common carrier furnish necessary assistance, if you look at page (4) (a) to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier, landlord etcetera is according the person whose communications are to be intercepted.

The telephone company?.

Mr. Andrew L. Frey: May be I am confused.

I think your argument to be that the government can anticipate and the Congress did not intend that the government anticipate everyone who is going to make a call to a monitored phone.

Mr. Andrew L. Frey: Well, but there are problems with that of that nature.

Chief Justice Warren E. Burger: Unless you have probable cause with respect to certain questions to believe that they are regularly communicating with the primary monitored phone.

Mr. Andrew L. Frey: Well, Mr. Chief Justice our first position is wholly aside from practical considerations which we think are substantial on which I will get to if I have time.

The question is what does the statute requires to do?

Now, our position is that the statute focuses on the person whose telephone is being intercepted.

Now, here the person who?s communication are to be intercepted here, the telephone company was not providing services to Donovan, or Buzzacco, or Robbins in this case of a kind that would be interrupted of a kind for which you needed a court order, court assistance to direct their facilitation.

The telephone company was providing the services to Kotoch, to Spaganlo, to Florea, to the persons whose telephones were being intercepted.

So, that this distinction between callers in from outside and callers out from the monitored phone, is I think built into the statute.

It is also I believe built into the -- reflected and the legislative history.

For instance in the senate report which is the principle document in the legislative history where they talk about the inventory notice provision, the report says at page 105 through, its operation that is the inventory notice provision, all authorized interceptions must eventually become known at least to the subject.

He can then seek appropriate civil redress etcetera.

Now, again the concept of Congress had, and perhaps it was unsophisticated in terms of the reality of investigations that are taking place but the concept that Congress had was it there would be one target and if we knew who that target was, as we normally would, that target would be named.

Rebuttal of Unidentified Justice

Unidentified Justice: The inventory provision says persons with s, 2518 (8) (d), the inventory provision to the persons names?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: It is perfectly clear that in practice more then one person is ordinarily named.

What we are inquiring into here is the obligation to in fact name people who have probable cause to believe will be calling in from outside phones, and I just do not think of that obligation is contained in the statute or it was ever intended by Congress.

Now, I just like to say a word a two about the policy considerations because the broad interpretation of the Court of Appeals accomplishes very little by way of protecting against unjustified intrusions and for the privacy of persons who maybe overheard.

The statutory scheme does not limit the scope of permissible ?authorized overhearing in terms of the identities of the persons who maybe overheard? but rather in terms of the kinds of conversations that may be overheard.

Persons who are not previously known to be involved in the criminal enterprise maybe overheard nevertheless, as Kahn plainly demonstrates.

On the other hand overhearing of all innocent conversations even those of the named target are supposed to be minimized.

So, the primary interest of these respondents would not have gained in any significant respect.

They would not have gained one ounce of additional protection, had they been named as in the order as they claim they should have been, this is not a great honor to be named in an order of this sort.

The Court of Appeals broad naming requirement not only does accomplish anything in terms of protecting the privacy interest that Congress was legitimately concerned when it enacted Title III, but it also imposes significant administrative burdens on the government and preparing applications significant burdens on the Court in weighing and approving them, all to no useful purpose.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Frey, let me just to ask why do you suppose Congress put in any naming requirement?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, Congress explained why they did it, at page 101 of the Senate Report, Congress said they listed the requirements contained in subparagraph 2518 (1) and they said each of these requirements reflects the constitutional command of particularization and they cited Berger and Berger had this to say about the naming requirement.

They said, then the Court said at page 59 of the opinion in Berger 388 U.S, it is true that statute requires the naming of the person or persons whose communications are to be overheard or recorded, but this does no more then identify the person whose constitutionally protected area is to be invaded, rather then particularly describing the communications, conversations or discussions to be seized, and in Kahn again the court recognizes that there is not Congress was wrong, there is not a constitutional obligation to the name.

Rebuttal of Unidentified Justice

Unidentified Justice: But the point is, they want to identify the person whose constitutionally protected privacy is to be invaded and you are saying that the owner of the phone has such a privacy interest, but the other person at the other end of the line has no such privacy.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, I am not suggesting that he has no such privacy interest.

What I am suggesting is that the naming requirement is not tied to kinds of conversations that can be overheard or the extent of the permissible overhearing.

Rebuttal of Unidentified Justice

Unidentified Justice: What I am trying to understand is why does the reason apply to one and not to the other, that is the heart of my question, I guess?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, the reason why it should not, there is a practical reason.

I mean there are several practical reasons.

You have a case like this which is a complex gambling conspiracy case with people actually all over the country transmitting line information, lying of bets, you although hear many, many persons it is a fast moving investigation and then you are telling the government that it has to engage in what essentially is a quite metaphysical evaluation of all the information in its possession so that it can tell the District Court that it has or it has not probable cause to believe that it will overhear certain persons and what it tells to District Court, what is the District Court to do with that information.

If the government has no probable cause, if the district court disagrees with the government then it strikes the name from the order and then we can although hear that person as a person unknown.

So it gives the person no protection to be stricken from the order.

It does nothing except it has a lot of work to the District Court and if we name someone who is at a borderline case and we will be forced to a policy of over inclusion if we loose this case.

We will be naming some people who will not be overheard and then when a suppression motion comes about and the intercept order and application are opened up these people will have in effect the famatory information unsupported by the actual result of the tap made public that they were suspected by the government of participating in criminal gambling enterprises, narcotics and so on.

So even in terms of, I mean the naming just does not serve a substantial interest of the individuals nor does it further the policy of the act.

I think I would better reserve the balance of my time.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Frey, let me ask you one question.

Do you have any doubt that Congress could have drafted a statute that provided only for the naming upon a showing probable cause of the owner of the phone in the United States against White?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: I do not have any problem with it.

I do not think they had to provide for naming of anyone.

Chief Justice Warren E. Burger: Mr. Berkman.

Argument of Bernard A. Berkman

Mr. Bernard A. Berkman: Mr. Chief Justice, May it please the Court.

My colleague Mr. Policy and I represent five defendants in the gambling indictment whose telephone conversations were intercepted by the government for use as evidence at their trial.

The district courts suppressed these intercepts because they were obtained in violation of Title III of the Omnibus Crime Control Act of 1968.

My clients Mr. Merlo and Mr. Lauer, because they never received inventory notice of the intercepts as required by 18 United State Code Section 2518 (8)(d) which I shall refer to as 8(d) of the Act and Mr. Policy?s clients because they were not identified in the application for authorization, for the tap even though they were known to the government as required by 18 United States Code Section 1218 (1)(b)(4) which if I have occasion to refer it to again will be as 1(b)4.

Both of these suppressions were affirmed by the sixth circuit court of appeals and I intent to urge in my portion of the argument that the suppression of the wiretap evidence against my clients was appropriate, proper and necessary because of the government?s violation of Title III 8(d) and after that my colleague will argue for affirmnace of the suppression as to his clients because of the government?s of the Title III violation of 1(b)4.

It seems to me, that at the outset it is important to identify a couple of facts which have become a obscured or muddied as a result of the briefs and the descending opinion in the Court of Appeals below.

One of the things that I think must be clarified is that there never was any actual notice to defendants Merlo and Lauer.

The trial court have heard the evidence and had an opportunity to observe the demeanor of the witnesses made a specific finding that no inventory notice was ever served upon Merlo and Lauer nor did they receive notice in any other way and that finding by the trail court was commented upon by the Sixth Circuit Court of Appeals and the majority opinion of the view that the fact that 37 other people were notified would at least give the defendants a feeling that they had not been intercepted because they had failed to receive any inventory notice as required by Section 8 (d).

So there is so far as this case is concerned, it is clear that this is not a situation in which only a technical violation, the failure to serve an inventory notice occurred in the record but in fact up until the time they were indicted some 11 months later and until they actually received the information as a result of their discovery applications they had no such actual notice.

Rebuttal of Unidentified Justice

Unidentified Justice: What was the reasoning of the Court of Appeals that, that your clients would know that 37 other people had been intercepted, but that they would have received no notices themselves, so they would assume they have not been intercepted?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Well, the Court of Appeals, with respect to the majority, did not take such a position.

I am sorry, the majority opinion did comment on the finding my trial court that they have not received the actual notice and further speculated in their opinion that far from the suggestion that because 37 other people had been notified, somehow by word of mouth, they must have had actual notice in someway of the interception, said that it is ambiguous and that it is just as likely that because the others had received the actual notice and they had not that they were entitled to assume that they were not intercepted.

Rebuttal of Unidentified Justice

Unidentified Justice: Well, how do the Courts of Appeals think that they have learned of the receipt actual notice by the other 37 people?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Well, I think they were just refuting an argument that had been made by the government that somehow or rather through the grapevine or whatever they must have received notice because 37 other people had received inventory notices.

Rebuttal of Unidentified Justice

Unidentified Justice: Is it not just as reasonable that they received that kind of notice by the grapevine they received notice the fact they have been overheard?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Well, that is the argument that was being refuted by the Court of Appeals as to the government?s argument that is what the government argued and the Court of Appeals decided that the finding by the trial court that there was in fact no actual notice in this case was sound and that is the basis upon which they did so.

The second fact that I think needs to be dealt with.

Rebuttal of Unidentified Justice

Unidentified Justice: Actual notice, now you mean the formal notice contemplated by the statute?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: No, I am going beyond that.

It is clear.

There is no question whatever Your Honor that no inventory notice was ever served upon these people, never.

The first information that they received came in the process after they were indicted and after discovery proceedings were instituted.

The question that was on the table so to speak so far as the Court of Appeals was concerned and the Trail Court was whether not conceiving that they had received no inventory notice as required by the statue, whether they had received actual notice that might somehow serve to medicate the violation of the statue and in dealing with that problem?

Rebuttal of Unidentified Justice

Unidentified Justice: That is from one of their friends.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Yes, or colleagues and that problem was what the Court was addressing when they concluded that no actual notice had been shown on this record, neither and inventory notice.

The second fact that I believe needs to be dealt with is the question of when it was that Mr. Merlo and Mr. Lauer?s identity were known to the government sufficient to cause them to be required to serve an inventory notice upon these particular defendants.

And I believe in the descending opinion of the Court of Appeals that judge indicated that somehow or rather that information did not come until August, about two months, two or three months prior to the time that the second inventory adding a couple of more people was actually filed.

I believe that, that represents a misreading of the record with all due respect.

Rebuttal of Unidentified Justice

Unidentified Justice: Was it not what the testimony was, the time was placed as the late summer of 1973, perhaps late August?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: That does appear, Mr. Gail, a special agent for the FBI did so testify and in the next few lines it becomes abundantly clear the reason that he, the question was put as to when he became cognizant of fact that these people were identified not only as individuals who had been on the telephone, but also individuals who were perhaps involved in the crime that they were investigating.

The reason that he became aware of that in August of 1973 was because of the fact that he had just been assigned that case at that time and he conceded in the next couple of pages and this appears at approximately 160 to 165 in the appendix, he conceded that in fact by January 13, a physical search and seizure was made of the premises on which Mr. Lauer and Mr. Merlo were found, that is a part of the problem cause that was assigned in that affidavit support of that warrant.

The telephone information which had been optioned was employed. That at time physical evidence was seized which was going to be introduced and some very critical admissions were obtained from Mr. Merlo and Lauer with respect to the fact that they were the people who were on the telephone and that they were the people who had rented the telephone in another name and he conceded I think quite honestly that as of that time and certainly by the 18th of January, all of the reports of the raid, all of the evidence seized, all of the reports of the admissions of these people were in the hands of the responsible people in the government, particularly FBI agents who were working with the strike force.

And so it seems to me that there is no way to read this record except to find that at least by January 18, the government had full knowledge of the identity and participation of these two individuals and yet from then until December, from January to December and after the time of indictment these people were never served with inventory notice, nor received notice of any kind and that is what the record suggests.

And so I think that when the Court in the Sixth Circuit, the dissenting Judge found that there was no knowledge until August.

I think he was bringing the rest of the record and I think it is very clear and I think Mr. Gail makes clear that the reason that he just learned the part was because he was a young lawyer who had just been assigned to the case and that the government did have this information.

In addition to that, there was some talk about the inadvertence of the failure to serve inventory notice upon Mr. Merlo and Mr. Lauer and I think that there is nothing in the record to indicate that the failure to do so was inadvertent.

One of the difficulties of attempting to find out from the government so far as the defendant?s standpoint is concerned as to the reasons for what occurred is of course that all of the facts are within the control of the government.

What we know from the record is to that from January 13th or January 18th of 1973 until December there was never any notice.

That when they combed the record in September 1973 to find other people, they found the couple of other people, but did not identify Merlo and Laure and it seems to me that the best place that can be put upon is record, is to suggest that as a result of sloppiness, as a result of negligence of the government these two people were not identified, that is the best the pace can be put on it.

It seems to me under those circumstances to allow an absolute and total failure to perform the duties that are required under the 8(d) the statute, puts a burden upon the defendants in terms of finding out why it was that it was not done which I think Congress never intended with the strict responsibilities that are necessary in implementing the limitation provisions of the Act.

Rebuttal of Unidentified Justice

Unidentified Justice: You have not taken the position that there was bad faith demonstrated by this record then I take it?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: I cannot say that there was bad faith.

It seems to me that there certainly was a complete and total failure which is unexplained by the government and which I think must be explained on the basis of at least negligence or sloppy performance.

Rebuttal of Unidentified Justice

Unidentified Justice: If you were to say that if there was negligence then it should follow that suppression is an order?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: That is one of the branches of our position, Your Honor.

The other branch would be to say that we read Giordano and Chavez correctly that if we are dealing with a central issue or central subject of the Act which was designed to limit the inappropriate use of interception of communications as we think that this clearly is that under that case as explained by Chavez whether or not the government has been guilty of any wrong doing either negligent or deliberate that because of its internality and because of the importance involved in making sure that the government follows in strict way every limitation that has been put upon them by the statute that regardless of any wrong doing or negligence by the government that suppression would be appropriate in necessary remedy.

So our positions are two (Inaudible) in that direction.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Berkman, how do you meet the government?s argument that the references to postinterception conduct, there are a couple of specific references, but they do not apply to the situation?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Yes.

It seems to me to be quite clear if we analyze the statute itself and if we analyze the legislative history of the statute that because of the necessity of surreptitious entry or surreptitious search and seizure as that term is applied to wire that, it is impossible to give the advance notice that the invasion of the client?s privacy or the invasion of the defendants? privacy is involved.

As a consequence, the postintercept procedures have been clearly set out to make sure that ultimately disclosure of these secret intrusions is made and to be made in a reasonable time thereafter, not immediately necessarily, but at a reasonable time thereafter.

It seems to me that in the government?s discussion of the whole problem of suppression there was no mention at all of Section 2515 which very clearly indicates that suppression is appropriate, when there has been a violation of this chapter.

It seems to me that, that and the legislative history surrounding that which is reported in detail in the Gilbert decision makes quite clear that is was important, so far as the government was concerned, so far as Congress was concerned, to make sure that a number of remedies were available in the event that there was a violation of the limitations of the Act.

Criminal provisions were provided in 2511, a civil suit was provided in 2520 and if you review the legislative history it makes clear that, that coupled with the requirement that the government not be able to use the fruits of it violations makes it very clear that, that was the intent of Congress.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Berkman, can I ask you one point?

As I understand your argument that the government does what it did in this case and they overhear the testimony of an unknown criminal, he can be prosecuted on the basis of that information, but if they overhear the conversation of a known criminal they cannot use it.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: It is my understanding that the words if known in the statute indicate either that the individual is known and was intercepted or that he is known to be involved in the criminal activity.

Rebuttal of Unidentified Justice

Unidentified Justice: That is what I said, well, if he is not known and he is very clever man then you can use it.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: And so the studies?

Rebuttal of Unidentified Justice

Unidentified Justice: But if he is stupid and he is known you cannot use it.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Well?

Rebuttal of Unidentified Justice

Unidentified Justice: Yeah, that is what you said?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Persons who are overheard, but not known?

Rebuttal of Unidentified Justice

Unidentified Justice: Right.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Come within another section of 8(d) rather than the one to which the Court is referring.

It seems to me that what the statute says in 8(d), is that anybody who is overheard and known he is got to receive an inventory.

Anybody who is overheard and not known must have that information at least transmitted to the Court so it can exercise its discretion in the interest of justice to make a determination as to whether or not to require an inventory and the failure in the case, Your Honor, is that there was no such information transmitted to the court, so that the court could exercise its discretion to make a determination as to whether persons who were overheard, but not known which is a category into which my clients fall, whether or not those persons should have been issued an inventory notice in the interest of justice.

Rebuttal of Unidentified Justice

Unidentified Justice: You admit that they were unknown, did your clients were unknown?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: We think that they were known as early as January?

Rebuttal of Unidentified Justice

Unidentified Justice: At first you said they were?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Yes.

Rebuttal of Unidentified Justice

Unidentified Justice: Went about five minutes explaining it.

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: Yes, Your Honor.

We think that these people were known at least by January 1973.

We are not making the contention that they were known at the time of the application for an authorization for the inception, but we do claim that since January of 1973 until the time that they actually discovered the information, after they were inedited, they were entitled to that inventory information and that they never received it, that is our position.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Berkman, your time is running short. You have not covered all your?

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: I would like to just make one other observation and that is this.

That with respect to this exclusionary, well, getting back to Mr. Justice Stevens? question, getting back to the exclusionary rule, although there are specific provisions in 2518(a) 8(a) regarding sealing which do express an exclusionary rule and 2518 9 to send a notice provision, it seems to me to be quite clear the 2515 provides the exclusionary rule on a statutory basis for all of the other violations of the chapter and further more with respect to 2518 9, I think it is important to note that the Congress when it required a showing of prejudice was able to draft such language and use it into 2518 9.

The balance on my time I would like to reserve my colleague to argue the question under 1(b)4.

Rebuttal of Unidentified Justice

Unidentified Justice: Mr. Policy.

Argument of Carmen A. Policy

Mr. Carmen A. Policy: Mr. Chief Justice, May it please the Court.

I shall address myself to the issue of identification as it relates to the respondents Donovan, Buzzacco, and Robbins.

Justice Byron R. White: Could I ask at the outset, suppose there is an application to tap or intercept conversations of Jones phone, over Jones?s phone and there is probable cause to believe Jones is engaged in the some conspiracy.

There is also probable cause to believe that he is engaged in the criminal conspiracy with Brown, but Brown is not named, but there is no probable cause to believe that he is engaged in a conspiracy with Smith.

Now, when the tap goes and they hear conversations with both of these other people, both Brown and Smith.

Now, is your position that Brown?s conversations are excludible and Smith?s are admissible?

Mr. Carmen A. Policy: That is exactly our position Mr. Justice White.

Justice Byron R. White: And I just make sure here, Smith?s conversation, the unknown person, is against any indictment in a criminal case against him.

Mr. Carmen A. Policy: Assuming no probable cause existed and they did not anticipate the interception of his conversations, that exactly our position, Sir.

Justice Byron R. White: And there does not seem to be any argument about that in the cases, that the conversation is between the target and Smith are admissible against them both.

Mr. Carmen A. Policy: I believe that is correct, Your Honor and Your Honor, I might say that there is no question, but that the government had probable cause that these three respondents were in fact engaging in this type of activity that was under investigation and that their conversations would in fact be intercepted and they had this knowledge prior to the application of December 26, 1972 when the government applied for an extension of the original wiretap.

It is our position that failure to list these know individuals and said application for the extension was in fact the statutory violation of 2518 1(b)4 which in fact resulted in additional violation of 2518 4(a) which requires the judge of course to list the identity of the person if known whose communications are to be intercepted.

We can in no way except the government?s position that the statute in question was designed to cover the patron of a telephone company and was designed to cover only the conversation of the patron or the man they know to use that particular phone located at that particular service.

Justice Thurgood Marshall: Would you please tell me why a known criminal is entitled to more protection than an unknown criminal?

Mr. Carmen A. Policy: Mr. Justice Marshall, one might say that when the government is seeking a course of search and seizure which is this is, they were searching and seizing the conversations of Buzzacco, Donovan, and Robbins and they have probable cause to believe that these men will be intercepted and they are violating the law, they have such an obligation of at least naming them by way of statute and by way of?

Justice Thurgood Marshall: And that would go to man who is calling from Paris?

Mr. Carmen A. Policy: If they have the probable cause to believe that he would be calling.

Justice Thurgood Marshall: Or king of Africa?

Mr. Carmen A. Policy: If they sought to bring him within the process of laws of United States.

Justice Thurgood Marshall: Any place in the world?

Mr. Carmen A. Policy: I believe so sir.

Justice Thurgood Marshall: If he is a known criminal?

Mr. Carmen A. Policy: If they have probable cause to believe that he was engaging in this activity.

Justice Thurgood Marshall: The best way to get the protection of our government is to be known as a criminal.

Mr. Carmen A. Policy: Quite the contrary sir.

I compare this to a situation where the police would actually come upon a man in the course a lawful search or a lawful arrest and find him in the commission of a crime.

In that situation they had no foreknowledge of his involvement or the fact that they would come upon him in the commission of this crime, but this does not relieve them of the obligation to elicit a search warrant or an arrest warrant for the individuals that have foreknowledge of in terms of their search and arrest.

Justice Thurgood Marshall: Do you mean that anybody that writes a letter to the government and says I am a bookmaker, he then is protected from then on.

Mr. Carmen A. Policy: Quite the contrary sir.

What I think he is doing is he is saying to the government here I am giving you some probable cause for you to go ahead and solicit a court and show a court that your following due process and statute and bug my phone.

Justice Thurgood Marshall: But if you send that letter and they do not name you and they intercept your message, you go free.

Mr. Carmen A. Policy: So long as that they?

Justice Thurgood Marshall: So long as you send the letter.

Mr. Carmen A. Policy: Well, Your Honor, I think it would have to be somewhat more descriptive then I am a bookmaker.

Chief Justice Warren E. Burger: You are correctly saying that the test is whether at the time the government had probable cause to believe there was a particular person who is not named, was involved in the criminal activity.

Mr. Carmen A. Policy: That is correct Mr. Chief Justice.

Chief Justice Warren E. Burger: Whether he was a well-known or totally unknown person before that, it would make no difference, probable cause is the key, is that right?

Mr. Carmen A. Policy: That is correct sir.

Probable cause at that particular individual?

Chief Justice Warren E. Burger: At that time!

Mr. Carmen A. Policy: At that time, at the time that they were seeking the application to be approved was in fact probably engaging in this type of activity and his conversation would be intercepted.

Both of those keys, and I feel that the reading of Kahn tells us and logically dictates, that were Minnie Kahn, in fact known, prior to the application being sought to have been engaging in this activity and probably using her husband?s phone.

I feel that this Honorable Court would have gone farther on the decision.

I would have stated that the statute would have required her being listed in said application.

I feel Mr. Chief Justice, Justices that we have a definite statutory violation here and when we look the Giordano, we are told that a statutory violation shall result in suppression when it hits that central aspect of the statute and when it hits an aspect of the statute which was designed by Congress to limit the use of this tool.

Now, I submit that in Berger and Katz, two of the key cases in this situation that Courts were concerned with interjecting and between law enforcement (Inaudible) wiretapping tool some judicial restraint or at least judicial review.

And I feel this is obvious in Congress? intent and by allowing the government to come forward and go to a District Court judge without providing him with the information as to the identity of those people that it has probable cause to believe will be intercepted and are probably committing this crime, they are bypassing, utilizing their own judgment in terms of that decision making process and taking away what Berger, Katz and Congress had intended to be some judicial review.

I further submit Mr. Chief Justice, Mr. Justices that there is a practical effect to not being named in this particular application.

As we read on in the Section 2518 8 requires inventory notice to be served upon all those named in the application.

Now, this is regardless of whether or not the application is denied, by placing this man?s name, who is a suspect upon whom probable cause exists in the application, he is guaranteed receipt of the inventory notice and is not subjected to the arbitrariness or to the discretionary activity that could go into effect otherwise.

I submit that if a innocent man with a subject of an investigation, he would preferred to know this even though his exonerated rather than have the entire process kept secret throughout and only in the hands and only in the files of the government.

I would say further that recognizing the existence of Chavez and comparing it to the Doctrine of Giordano; we certainly have a situation with the identification issue which is closer to suppression than the Chavez situation.

I would even submit to this Honorable Court that the identification issue is as key and as central as the Giordano issue, because here we are dealing with the situation that goes to the merits of the probable cause aspects of these applications.

Here we are getting again to the heart of what Berger, Katz and Congress had sought in the form of judicial review, judicial restraint.

Rebuttal of Unidentified Justice

Unidentified Justice: Well, you refer to Berger and Katz.

Those are constitutional cases.

You do not have any doubt from reading that footnote 15 in Kahn, do you that, what you are saying is that statute requirement is not a constitutional requirement.

Rebuttal of Carmen A. Policy

Mr. Carmen A. Policy: Without addressing myself to whether not it is a constitutional requirement, I submit that the statute in question Your Honor has been based upon the rulings of Berger and Katz and I am submitting that the reference in Berger that was made by Mr. Frey at page 59 relating to naming of a person as being the requirement was a reference that the government in effect for the State of New York was attempting to say, look we have a naming requirement that should be enough to save the statute.

I think it was the State of New York?s opinion at that point and effort at that point to say, this is such an important key issue, this naming requirement, it is there, the statute should survive, whereas I believe this Honorable Court indicated that that was not in and of itself enough.

Rebuttal of Unidentified Justice

Unidentified Justice: You are not arguing that this is a constitutionally required rule that you are contending for here?

Rebuttal of Carmen A. Policy

Mr. Carmen A. Policy: I would submit that as a secondary argument it would be a constitutionally required rule to have a man, who the government knows in advance will be searched, whose conversations will be seized, named in an application for a warrant for a wiretap and at the failure, the failure to go so far as to simply name this individual and provide the aspects of probable cause to the judicial officer, who would review the same, would be actually a violation of constitutional standards as well as a violation of the statutory standard.

Rebuttal of Unidentified Justice

Unidentified Justice: Well, do not you think that Kahn language is quite to the contrary?

Rebuttal of Carmen A. Policy

Mr. Carmen A. Policy: Your Honor as I recall the Kahn language, I felt that Kahn was saying and did say that the requirement was statutory or the fact that she was not known, there was no probable cause to know that she was committing these offenses.

Therefore, a statutory violation did not come into effect and I believe that this covered the constitutional aspect and did not allow it to come into play.

I would submit that in Kahn again, had the government known of Mrs. Kahn?s identity and the fact that she engaged in this illegal activity, statutory and constitutional consideration would have come into play.

Thank you very much

Rebuttal of Bernard A. Berkman

Mr. Bernard A. Berkman: I do not have anything further.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: I have a couple.

First of all, I want to come back to a point that was apparently troubling in Mr. Justice Stevens about why Congress would want to make it distinction between the people whose phone was being monitored and people calling in from outside.

One of the important reasons is that the impact of a wire interception differs greatly on the people, whose phone is being intercepted, whose every conversation is subject to being overheard and the people who may occasionally, once or twice during the course of a surveillance that involves several 100 telephone calls being listened to, maybe overheard.

There is a much greater impact upon the person whose phone is being intercepted and for that reason it is logical for Congress to have made the distinction that we submitted.

Rebuttal of Unidentified Justice

Unidentified Justice: Doesn?t the distinction tend to disappear as the second person?s use of the phone becomes more and more regular and frequent?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Yes, I mean if we had a case where the primary target of our investigation was somebody who we knew everyday was calling in from outside, you might have an issue, but these Donovan, Robbins and Buzzacco were very tangentially?

Rebuttal of Unidentified Justice

Unidentified Justice: Or a case where you trying prove the five-man crime and you know all five people used the same phone over and over again.

Even there you would not say they had to name more than one.

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, I would first say that you did not have to name more than one, but second I would say if you did have to name more than one, if all five used the phone it was being monitored, you might have to name them, but the people with whom they were doing business, people from Las Vegas sending the line information would not have to be named even though we expect to overhear them.

Now, as far as the point that Mr. Policy was just making, we do not need either under the constitution or under the statute probable cause as to any person in order to have the interception.

All we need is probable cause to believe that an offense is being committed and at this telephone has being used and the conversations relating to the act will be intercepted.

There can be no person. The statute does not require us to name a person if we do not know one.

It is neither a constitutional or statutory requirement, and it is plainly I think for that reason not central.

Rebuttal of Unidentified Justice

Unidentified Justice: But on the reverse side of that as soon as you do have probable cause then you should name him, should you not, under the statute?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, the statute requires us to identify, yes, we could see that, we have to identify a person whose phone is being tapped.

Rebuttal of Unidentified Justice

Unidentified Justice: No, no.

After the phone, the tap is on and then some calls are coming in.

as soon as it appears that this man is calling saying whose going to win the third race tomorrow afternoon because it is all fixed and you get repeated calls, have you not then probable cause to believe that person?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, may have probable cause, but it is our contention that we do not have to name them and we certainly would not have the name them unless we sought a renewal.

Rebuttal of Unidentified Justice

Unidentified Justice: You cannot name them because you may not know the name; take some steps to identify them under?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: No, I do not know, I even think Kahn said we did not have to investigate to find out.

That would be terribly burdensome in these investigation, we could not do it, we have too many people, we would be spending all our time on something that is really a totally irrelevancy to the administration of the Act.

I am not saying that the naming of the target as irrelevancy, the naming?

Rebuttal of Unidentified Justice

Unidentified Justice: If you would then go ahead and indict him?

Rebuttal of Andrew L. Frey

Mr. Andrew L. Frey: Well, it is not irrelevant to him, that he is been overheard and that evidence would be introduced against him and of course the conversations are not irrelevant to the trial, but in terms of the privacy concerns that the Title III is concerned with since we can overhear as Justice Marshall pointed it out, people of whom we have no suspicion, the privacy concerns are not, it is not relevant to protecting people?s privacy and if it is not relevant for that reason, we say it is not central to the Act and the Court should not go out of its way to construe the statute to impose what is an administratively burdensome requirement which will make life also very difficult for judges who already have 46 page applications to read over and we have 146 page applications if we have to show all the probable cause we have with a far flung conspiracy as to every person around the country.

Thank you.

Chief Justice Warren E. Burger: Well, thank you gentleman.

The case is submitted.

Attribution:

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Featured:

United States v. Giordano - Oral Argument

Thu, 23 Aug 2012 18:23:37 +0000

Case:

United States v. Giordano

Media File:

72-1057_19740108-argument.mp3

Related Transcript:

72-1057_19740108-argument

Transcript:

Argument of Bork

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-1057 and 1319, United States against Giordano and United States against Chavez.

Mr. Solicitor General you may proceed whenever you’re ready.

Mr. Bork: Mr. Chief Justice, may it please the Court.

We have two cases, United States against Giordano and United against -- United States against Chavez which involves the suppression of wire interception evidence and the fruits of that evidence in narcotics cases.

The cases are here on writs of certiorari to the Fourth and Ninth Circuits respectively.

In both cases the District Court suppressed the evidence applying Title III of the organized -- of the Title III of the Safe Streets Statute and this Court of Appeals affirmed and this Court granted the Government petition for certiorari.

These two cases represent a great many cases.

Some of them pending here on petitions for certiorari and others awaiting resolution in lower courts being held up.

The issue as the Government sees it is entirely a statutory one.

It’s a -- the construction of Title III of the Crime Control and Safe Streets Act of 1968 and the Government's -- the propriety, the adequacy of the Government’s procedures in processing applications to courts for orders permitting wire interception.

The -- in addition to the adequacy of those procedures, the cases raise the question of whether assuming the procedures were in some degree defective, suppression is the remedy called for.

At the outset I’d like to stress what these cases are not about.

There are no constitutional violations in our view in these cases, no violations of the Fourth Amendment.

Those provisions of this statute which were going to comply with this Court’s decisions in the Burger and Cass were fully complied with.

Courts did pass upon probable cause and all other Fourth Amendment elements.

There’s no contention nor I think could there be any, but the evidence that has been suppressed is not reliable evidence, there is not accurate evidence.

There is no question in this case -- in these cases of convicting innocent persons.

I think as we look at the case and the facts, it will also become perfectly plain that the Government’s procedures which in one or two respects certainly must be said to be not the best compliance with some aspects of the statute, do not display any malevolent purpose.

There was no sinister purpose, there was no purpose of hiding anything in these procedures and I think insofar as there was a deviation from a procedure, we can just -- we can demonstrate that it was a harmless error and an error I might add which is now have been corrected.

Let me --

Chief Justice Warren E. Burger: Corrected as to future, you mean?

Mr. Bork: It’s been corrected for some time Mr. Chief Justice.

Chief Justice Warren E. Burger: Two years approximately or --

Mr. Bork: In 70 -- 1972, the last correction took place in November, I believe.

Justice William J. Brennan: Mr. Solicitor General, is it the fact in each of these cases, what was told that the judge, any chances was not quite accurate?

Mr. Bork: In every one of these --

Justice William J. Brennan: What happened?

Mr. Bork: In every one of these cases, there was a letter authorizing an application which went out over the signature of Mr. Will Wilson, then head of the Criminal Division.

The letter looked as if Mr. Will Wilson had made the operative decision to authorize the application to the Court.

As a result, the Court orders identified Mr. Wilson as the person who had authorized the application.

In fact, those applications had been authorized either by the Attorney General in most cases and in some cases by the executive assistant, the Attorney General Mr. Sullivan involved.

That was a result entirely as I hope to show of the way the internal memorandum were drafted in the Department of Justice and was not a deliberate misidentification in any way.

Justice William J. Brennan: Now, that wasn’t my question.

I gather though that what the information the judge had before him was not accurate information at all, was it?

Mr. Bork: He had accurate information as to everything except, Mr. Wilson’s name.

Justice William J. Brennan: Well that’s [Laughter] rather important, isn't it?

Mr. Bork: Well --

Justice William J. Brennan: Under the statute?

Mr. Bork: I think it has, I think it has importance under the statute.

I don’t think it has any importance that we justify suppression in these cases.

Perhaps, it would help I can describe the general procedures that were followed in all of these cases and the statutory provisions that are claimed to be violated by that fact and then come to the particular facts of these two cases.

When it was thought by an investigator or a field attorney that a wire interception order was required or was appropriate, he would then gather together the information and affidavits and the application to show probable cause, the necessity for the use of wire interception as a technique and the other aspects of the statute calls for.

He would forward that to Washington.

In Washington, it was reviewed by an attorney in the special unit of the organized crime and racketeering section of the Criminal Division, a special unit setup just for this purpose.

That was the main review.

It then went with the memorandum from the attorney in that unit to the Assistant Attorney General of a Criminal Division whereby designation it was reviewed by one of the two deputies, one of the two deputies, Attorney General’s Mr. Shapiro or Mr. Peterson at that time.

Should they approve and I should stress that at every level, disapproval meant it was sent back.

It did not -- if anybody disapproved, it did the applic -- the authorization -- that request did not go on and a number of them were in fact sent back.

Should they approve the application and the memo were sent up to the Attorney General’s office where it was reviewed by the Executive Assistant Mr. Sol Lindenbaum, who was been the executive assistant to the Attorney’s General starting with Attorney General Mr. Ramsey Clark and is still the Executive Assistant to the Attorney General.

Mr. Lindenbaum would review it and then send it on to the Attorney General, Mr. Mitchell with his recommendation.

Through 1969 when this practice -- when the experience with the statute first began, 33 such applications were authorized by Mr. Mitchell personally.

Mr. Lindenbaum in 1969 did not attaches Mr. Mitchell’s initials to any.

They were all -- everyone was done by Mr. Mitchell.

As 1970 began and the flow of these applications begin to increase and Mr. Mitchell began to do some traveling.

As close as we can calculate it, about April 1st, 1970 after there had been some further experience beyond the 33 applications in 1969, Mr. Mitchell authorized orally Mr. Lindenbaum to act on his behalf when Mr. Mitchell was out -- was unavailable and could not be reached by telephone with the statement that when he returned, Mr. Lindenbaum was to tell him what he’d done in this respects and he would then see whether he approved as he did in all of these cases.

Now --

Justice Potter Stewart: What if he hadn’t approved that after he got back from a month's trip?

Mr. Bork: Well, I -- if he hadn’t approve, I assume that the interception would have terminated.

But Mr. Lindenbaum --

Justice Potter Stewart: The interception would have taken place.

Mr. Bork: For the month, Mr. Justice Stewart, correct.

I want to -- I wish to say however that Mr. Lindenbaum was operating under a policy established by Mr. Mitchell and that he had worked on these things with Mr. Mitchell for some time before he began to do this and I think that was no question and he understood the policy Mr. Mitchell was applying.

And I should also stress although I’m afraid that something stressed repeatedly, that although the interception would have taken place, had such a thing occurred, it would have only taken place after a Court had determined that every element of probable cause and every other required element was present.

Justice Potter Stewart: Well, but also the Court, not have determined it, that the -- that Will Wilson had approved it too when he hadn’t?

Mr. Bork: That is correct.

Justice Potter Stewart: And that Will Wilson had been specifically designated and had in fact approved it?

Mr. Bork: That is correct.

Justice Potter Stewart: If that a fact it would have been approved by under my hypothetical case by Mr. Lindenbaum who was orally authorized to do it and but then on the return of the Attorney General had been disapproved.

Mr. Bork: Under your hypothetical --

Justice Potter Stewart: [Voice Overlap]

Mr. Bork: Well, under your hypothetical that would be true.

However, that did not happen and these procedures are no longer in effect so it cannot happen.

Now, the -- about a 150 to 180 of these applications out of -- appeared to have been initialed by Mr. Lindenbaum with Mr. Mitchell’s signature.

Now, that’s out of a total --

Chief Justice Warren E. Burger: Is that beginning in April 1970?

Mr. Bork: That is correct Mr. Chief Justice.

Chief Justice Warren E. Burger: And for how long, about a period?

Mr. Bork: In the 1971 when these practice was first questioned in Court because the Department of Justice said no inkling, anybody, they're being troublesome about this practice.

When they were first questioned in the Court, they changed it.

But I wish to say, about those 170 or so applications that were authored by -- authorized by Mr. Lindenbaum putting Mr. Mitchell’s signatures on the memorandum, that a great many of those were in fact applications that had been authorized by Mr. Mitchell over the telephone.

Mr. Lindenbaum had gotten to him over the telephone, had read hem the stuff and read him the material and had received Mr. Mitchell’s approval.

And so that Mr. Lindenbaum was performing in those cases a ministerial act only of doing what Mr. Mitchell conformed we should do. Unfortunately, Mr. Lindenbaum did not keep a record of the telephone calls so that we in every case in which Mr. Lindenbaum put Mr. Mitchell signatures on the memorandum, we must assume that that maybe a case in which there was no telephone authorization.

Although we know that a great many of them were in fact authorized by telephone.

It’s at this stage that the first problem of -- or claim of violation of the statute occurs because in Title III, 18 U.S.C 2516, it is provided that the Attorney General or any Assistant Attorney General specially designated by the Attorney General may authorize an application to a federal judge.

And the claim is that when Mr. Lindenbaum, the Executive Assistant applying the policy laid down for him by the Attorney General authorized that that falls outside the statute.

Now, the second issue arises because of the form of the memorandum that Mr. Lindenbaum or Mr. Mitchell in most cases actually initialed.

The form of the memorandum was draft -- the memorandum was drafted so as to track the statute.

That memorandum was drafted by so far as we can tell by an attorney in the special unit which first reviews these things and send up with the file from Mr. Mitchell to authorize it.

And it was in the form of a special delegation so that when the memorandum was initialed, it went back down to the Criminal Division, addressed to Mr. Wilson saying pursuant to the powers conferred on me by Section 2516 of Title 18, you are hereby specially designated to exercise those powers for the purpose of authorizing, the particular trial attorney, to make the above described application.

He’s delegate -- he’s designated solely for the purpose of authorizing it so that it’s understood that Mr. Wilson is to perform a ministerial act.

He’s not designated to make any judgment.

In fact the judgment of the Criminal Division had already been made when the file was on its way up or it wouldn’t have gone up.

The net result was, when that memorandum went down, this ministerial act of affixing a -- Mr. Wilson’s signature to a letter was performed by one of his two deputies, both of whom were authorized to do this in a number of matters to Mr. Henry Peterson and Mr. Harold Shapiro.

The letter went out, as we have noted, looking as if Mr. Wilson had made the operative decision when in fact the Attorney General had made the operative decision or in some cases, the Attorney General’s executive assistant.

And the Attorney in the field would have no way of knowing about this memorandum in its form and why does it occur, so he would assume, usually that Mr. Will Wilson had made the operative decision.

And he would so tell the Court and it is claimed there and the Court would include that fact in its order and the claim therefore is that Section 2518 of Title 18 which provides that each application shall include the following information; (a) the identity of the author authorizing the application and in 4 (d); the identity of the person authorizing the application must be in the judge’s order, the wire intercept order.

In all of these cases --

Chief Justice Warren E. Burger: Mr. Solicitor General, the order would name in this sequence at that time the Assistant Attorney General of the civil, of the Criminal Division or who would be the named person?

Mr. Bork: The -- in every one of these wire intercept order, some 500 of them, Mr. Wilson’s name appears, Criminal Division, because of this memorandum and forums that were used in the department.

There is no -- all of the cases involved what we call the Will Wilson issue because of that formal letter going out.

Only some of the cases involved the question of the delegation by Mr. Mitchell to Mr. Lindenbaum of the authority.

Justice Byron R. White: Well how did this happen Mr. Solicitor General?

It just happened, this is the way things happen to work out, nobody caught it?

Mr. Bork: Nobody caught it.

In fact Mr. Justice White when we caught -- when the department caught the delegation problem because litigation arose of it, the delegation from Mr. Mitchell to Mr. Lindenbaum, they corrected that.

They didn’t look at the other form and that continued until litigation began over that form.

Justice Potter Stewart: Mr. Will Wilson?

Mr. Bork: Right.

And the -- these forms -- this was a new statute, when Mr. Mitchell started to apply it working with the statute, hadn’t been used before and that there --

Justice Potter Stewart: It turned out that your department, hasn’t it?

Mr. Bork: The -- some of this relevant positions had been propositions, had been, yes, Mr. Stewart.

Justice William J. Brennan: Mr. Solicitor, I see if I get this clearly.

18 U.S.C. 2518 (1) (a), I think that’s the one you just referred to, isn’t it?

Mr. Bork: Yes.

Justice William J. Brennan: That each application, that means the application to the judge, does it not?

Mr. Bork: That is correct Mr. Justice Brennan.

Justice William J. Brennan: And that shall include, shall include the following information: (a) the identity of the investigative or law enforcement officer making the application and do I understand that none of these applications accurately identified the investigative or law enforcement officer making the application?

Mr. Bork: No Mr. Justice Brennan, they did identify that man, that was the trial attorney, or the investigator.

Justice William J. Brennan: Right.

Mr. Bork: But they did not invest -- they did not correctly identify the officer --

Justice William J. Brennan: Officer authorizing.

Mr. Bork: Authorizing the application.

Justice William J. Brennan: None of them did?

Mr. Bork: That is correct.

Justice William J. Brennan: So that at least on the face of the statute, none of these applications complied with that provision of the statute.

Mr. Bork: That is correct.

Justice William J. Brennan: Right.

Justice Potter Stewart: In other words, the facts are that Will Wilson never authorized one of these and never signed the letter.

Mr. Bork: Will Wilson certainly never signed the letter and the best that can be said about the authorization procedure is that if delegation is permissible in this area, point that I would come to, he had delegated on the way up the power to approve the application to his deputies, two deputies, Mr. Peterson and Mr. Shapiro and they did approve them on the way up.

When the memo came back down, Mr. Wilson made no operative decision and neither did his deputies at that stage.

Justice Potter Stewart: Well, one or the other -- the deputies would put his signature on it with a rubber stamp or make some [Inaudible]

Mr. Bork: I don’t - - I think whether the -- used the stamp or facsimile, I don’t know, but they did put on --

Justice Potter Stewart: Or write out his name as over his signature?

Mr. Bork: That’s correct.

Chief Justice Warren E. Burger: In effect this was following the practice that is routinely done with ordinary letters every -- day-to-day as distinguished from applications to a court?

Mr. Bork: Oh!

Yes.

In fact that there are many as I intend to state, there are many cases in which delegations of this sort or authorizations to [Inaudible].

In the case of Mr. Wilson, when the memorandum came back down, I believe it’s quite clearly a ministerial act at that stage and the only problem, there’s no question about the authority to put on the name, the only problem is that when it -- when the letter goes out that way, the attorney in the field tells the Court that Mr. Wilson made the operative decision when in fact Mr. Mitchell made it.

Justice William O. Douglas: It is hardly ministerial to describe the issue in some of the [Inaudible]

Mr. Bork: No, I only meant with that Mr. Justice Douglas was that the fact that somebody else signed Mr. Wilson’s signature, I think was ministerial.

The fact that the signature should not have been there as the person authorizing is not ministerial, that’s more substantive.

Justice William O. Douglas: Because what you said brought me up rather sharply because in -- when I was in the executive branch, this was a recurring problem that we never dreamed to delegate anybody, deciding the subpoenas in your name?

Mr. Bork: Mr. Justice Douglas, I don’t think there was any delegation of a signing of subpoenas.

Justice William O. Douglas: Well this is -- we’re getting at the same thing.

Mr. Bork: Had the --

Justice William O. Douglas: They're collecting evidence.

Mr. Bork: Had the letter said, this letter was only notifying the trial attorney, had the letter said, the Attorney General has authorized this as was the case and had Mr. Peterson signed Mr. Wilson’s name to a statement that the Attorney General authorized it, I don’t think there would have been any problem, that would have been a ministerial act.

The problem is --

Justice Potter Stewart: If the Attorney General had authorized?

Mr. Bork: That’s correct.

Now, the problem is, the identification of the authorizing officer, not the affixing of the signature.

Not the question of which person affixed the signature.

Justice Byron R. White: So the order that came back down from the Attorney General actually did say, you are authorized to notify it, didn’t it -- isn’t it?

Mr. Bork: It said Mr. Justice White that you are specially designated to act in this matter for the purpose of authorizing the application.

Pursuant to the powers conferred on me by Section 2516, you are hereby specially designated to exercise those powers for the purpose of authorizing the trial attorney to make the above described application.

Justice Potter Stewart: And that was a communication from the Attorney General to Attorney General Wilson.

Mr. Bork: That is correct.

Justice Byron R. White: And the --

Mr. Bork: They were --

Justice Byron R. White: The fact was that at stage, the Attorney General has already approved it and in effect it was an order to Wilson to go ahead and approve it himself, I suppose?

Mr. Bork: That’s correct.

Justice Thurgood Marshall: Is there any way in the world that the judge could know that Mr. Lindenbaum had approved it and not the Attorney General?

Mr. Bork: Not unless inquiry was made Mr. Justice Marshall as it --

Justice Thurgood Marshall: But there was a reason for them to make that --

Mr. Bork: No, they would not.

I think however --

Justice Thurgood Marshall: What you’re actually doing, you were telling the judge that either Mr. Wilson or the Attorney General approved this.

Mr. Bork: Well, the fact --

Justice Thurgood Marshall: And in fact the executive assistant was doing it.

Mr. Bork: Well, in some cases the executive assistant was doing it, Mr. Justice Marshall.

Justice Thurgood Marshall: That’s the one -- those are the ones I’m talking about.

Mr. Bork: But the -- in no case was the judge told that the Attorney General did it.

He was always told that Mr. Wilson did it.

Justice Thurgood Marshall: It would -- Mr. Wilson wasn’t doing it?

Mr. Bork: No.

Even in the case when the Attorney General was --

Justice Thurgood Marshall: Mr. Wilson was doing what Mr. Lindenbaum told him to do with Mr. Mitchell’s signature.

Mr. Bork: That is correct Mr. -- that is correct.

There is no doubt about it, that some of these cases, but I might say that Mr. Justice Marshall, I think that’s not an uncommon situation in which the Attorney General delegates certain functions that are specified by statute as being Attorney General’s functions.

And often, nobody knows that in fact the operative decision was made by someone other than the Attorney General.

Justice Thurgood Marshall: Well, I don’t know whether that happens so often.

I hope it doesn’t happen so often when you are interfering with people's rights of privacy etcetera?

Mr. Bork: Well, Mr. Justice Marshall, I intend to discuss at some length of fact.

Justice Thurgood Marshall: Okay, go ahead.

Mr. Bork: No, I won’t answer it now, to -- I didn’t mean to put a -- I didn’t mean to put it off.

I just meant to indicate my answer which is that I think nobody’s right of privacy was interfered with in these cases in any way.

These were all cases in which every Fourth Amendment right was observed and in which in fact Mr. Lindenbaum applied Mr. Mitchell’s policy and nothing would have changed had Mr. Mitchell been there.

Same interceptions would have occurred.

The same findings of probable cause would have been made.

Justice William J. Brennan: And yet I suppose Mr. Solicitor General what this will come down to, is being as you opened in the statement a statutory matter is what significance did the Congress attach to that provision requiring that the application identify the officer authorizing the application, doesn’t it?

Not withstanding all of this, if the Congress had a purpose for making that requirement and that purpose s not satisfied by these procedures --

Mr. Bork: Well, --

Justice William J. Brennan: -- depending on everything you’ve said that I spoke -- I expect to – it is still a statutory violation, isn’t it?

Mr. Bork: No.

Justice William J. Brennan: Well, I mean it doesn’t -- you may not concede it but that’s what the issue comes down to?

Mr. Bork: The issue comes down to that, certainly Mr. Justice Brennan.

I think it’s neither a statutory violation particularly in the case of the delegation from Mr. Mitchell to Mr. Lindenbaum nor do I think there is any case in the statute or elsewhere for suppression of the evidence.

Justice William J. Brennan: Well, I gather --

Justice Byron R. White: When even if it’s a statutory violation.

Mr. Bork: That is correct.

Justice William J. Brennan: But I gather, when you get to whether or not it was a statutory violation, you will address don’t you that report of the -- the Senate report in which -- in the dealing with this requirement, the emphasis was on the lines of responsibility leading to an unidentifiable person?

Mr. Bork: I think --

Justice William J. Brennan: (Inaudible) this provision itself should go a long way for guaranteeing that no abuses will happen?

Mr. Bork: I think indeed -- I will come to that and indeed in terms of the delegation by Mr. Mitchell to Mr. Lindenbaum, I would contend that the statutory purposes are carried out precisely.

There is a unitary policy.

It was established by Mr. Mitchell and Mr. Lindenbaum understood it and carried it out very well and in fact the Attorney General was responsible and there has been no question about fixing the responsibility to him.

Justice William J. Brennan: It may not but behind the scenes, that’s quite true.

But the question is whether what was before the judge at the time of the application satisfied that requirement of the statute?

Mr. Bork: That -- yes sir, Mr. Justice Brennan, that is the 2518 (1) and (4) (d) question.

I was addressing the --

Justice William J. Brennan: I beg your pardon?

Mr. Bork: -- 2516 question but --

Justice William J. Brennan: To the effect of the court.

Mr. Bork: Let me come to the -- I suppose since these cases are so general in their impact, I need not perhaps detail particular facts of this case and how it happened in the Giordano case.

Mr. Lindenbaum did authorize the first application.

When the time came seven days later, I believe it was for the extension order, Mr. Mitchell was back in the office, saw what had been done and signed and authorized the application for an extension.

One could see I think ratification in that, but the issue is far more general than simply this one case.

Although I heard that when one case but not others, but let me -- the issue is quite general.

The issue of Mr. Mitchell’s delegation to Mr. Lindenbaum, the 2516 (1) case affects 60 cases with 626 defendants.

The issue of Mr. Wilson being identified as the authorizing officer which is the 2518 issue affects 159 cases with 1433 defendants.

Justice Potter Stewart: Are those neutrally exclusive or is the --

Mr. Bork: No, they overlap Mr. Justice Stewart, I was about to say all of the Mitchell, --

Justice John Paul Stevens: And the latter include the former?

Mr. Bork: Yes.

All of the Mitchell-Lindenbaum cases are also, Wilson, a few cases so that the outside figure is 1433 defendants in these organized crime cases.

There are 525 applications for orders which are at stake.

In fact 2 years work of organized crime section is at stake in these cases.

I’ve said that the procedures here are no longer in use.

I should say that up until -- when this was recognized as an issue, there would be in litigation, they moved immediately to a case where the Attorney General made the authorization.

The paper shows he made the authorization and the Court has told that.

Recently, special delegation -- special designation has been made to Mr. Henry Peterson, the Assistant Attorney General in charge of the Criminal Division and he is now making the authorizations.

We argue this case a little bit in reverse of what would seem to be usual order.

That is we usually argue, we didn’t violate a statute, but if we argue suppression.

We argued suppression first in this case not because of any particular doubt about the or feeling of weakness about the statutory argument because as we looked at it we felt the weight of this case is not our desire to sustain these procedures for the future.

They are of no value.

They were accidental procedures that came about by the way the memorandum were drafted.

The weight of this case is the preservation of all of these prosecutions against defendants as to which they Government feels it has a very good case and that is why we argued the suppression point first to indicate what the Government perceives as the importance of these cases.

I confess that I find it difficult to see any case for the suppression of vital evidence and accurate evidence in this class of cases.

I think I have sufficiently --

Justice William O. Douglas: Well, the statute provides for it, doesn't it?

Mr. Bork: I think not Mr. Justice Douglas.

I think the statute does not provide for suppression and --

Justice William J. Brennan: Well, what does that provision 2515, whenever any wire or oral communication is intercepted, no part of the content of self-communication and no evidence derived there from, may be received in evidence in any trial before any court, disclosure of that information would be in violation to this chapter.

Mr. Bork: That is quite --

Justice William J. Brennan: That’s the provision, isn’t it?

Mr. Bork: I don’t think that’s the operative provision.

No sir.

Justice Potter Stewart: 2518 can, the other --

Mr. Bork: That is correct.

The disclosure provision goes back to in violation of the subsection and so forth and I think you finally have to as the Court of Appeals recognized, you have to go to 2518 (10) to see what will sustain a motion to suppress.

And any aggrieved person may move to suppress on the grounds that; (1) the communication was unlawfully intercepted, the Court Below said that that applied here.

(2) The order of authorization or approval under which it was intercepted is insufficient on its face and the Court in the Fourth Circuit said that that applied here.

Now, I don’t think those provisions can be read.

The first provision I think can -- the communication was unlawfully intercepted most certainly cannot be read to say that if any provision of this Title was deviated from in any way a suppression is called for because it’s an unlawful interception.

If you read it that way, there would certainly be no reason to have two or three that the order is insufficient on its face or that the interception is not made in conformity with the order because those are all violations of the statute too.

And further more, it would be very easy to draft a statute, to say anytime you deviate, the evidence is suppressed.

That is not what was done.

I think when you look at the legislative history on page 39 of our brief, we quote the Senate Report.

In page --

Justice William J. Brennan: Which of these cases is that?

Mr. Bork: This is in Giordano, Mr. Justice Brennan.

Justice William J. Brennan: Thank you.

39?

Mr. Bork: 39.

We quote the Senate Report, it is quoted also on page 29 of respondent Giordano’s brief but I think the passage quoted in that brief cuts off both the – trivial too soon.

The provision, Section 2515 must be read, the Senate Reports says, “In light of Section 2518 (10) (a),” which is the point we have just been making.

“It largely reflects existing law.”

Then further down it says, “There is no intention to change the attenuation rule nor generally to press the scope of the suppression rule beyond present search and seizure law.”

I think that reading of legislative history supports the statutory analysis I have just suggested that if you look at 2518 (10) (a), one obviously means the communication was unlawfully intercepted.

I think that means under present search and seizure law, it protects Fourth Amendment values.

It extends Fourth Amendment values in one respect because it extends them to grand jury proceedings and so forth where the Fourth Amendment might not otherwise apply.

Now, I don’t think the misidentification of Will Wilson as the person who made the operative decision nor the delegation in some cases to Sol Lindenbaum can be made into a Fourth Amendment value and therefore I don’t think the first point here can conceivably be used to suppress the evidence of these cases.

If you go on to the second point, it says the order of authorization or approval under which it was intercepted is insufficient on its face.

The Court of Appeals said a rather peculiar thing I think.

It said that once you realize that Will Wilson didn’t make the authorization which you find out by holding an evidentiary hearing, then you’re entitled to take his name out of the order, that leaves the blank in the order and at that point it becomes insufficient on its face.

I don’t think that’s the meaning in law of insufficiency on the face of the order.

That order was not insufficient on its face.

It recited a man who could have been and was specially designated and the order was valid on its face.

I don’t know how one can find the facial invalidity by holding a hearing to find out if the underlying facts are true.

Chief Justice Warren E. Burger: Are you saying that that test must be made by assuming the truth and accuracy of everything that’s in the paper -- on the paper.

It is nevertheless deficient, if that’s the word of the statute, insufficient on its face?

Mr. Bork: That’s right Mr. Chief Justice.

I think one has to look at it -- I think what this too is, is obviously a back stop to one.

The -- (1) Says of communication was unlawfully intercepted.

(2) Says insufficient on its face.

That means that the man who receives the order is to go out and conduct the wire interception.

If he looks at the order and he sees that it’s wrong on its face, he’s got no business going forward, he had to go back and find out why it’s wrong.

And that of course, (3) is the -- he must follow the order.

So I don’t think --

Justice Potter Stewart: The three, no Court has held the three, isn’t out here?

Mr. Bork: No, no.

That’s correct Mr. Justice Stewart.

No Court has said the three is involved here.

I can’t understand the facial invalidity argument.

Respondent's brief in the Giordano case cites some cases which do not seem to me as I read and to discuss the on its face language, but in fact are cases that say that you may hold an evidentiary hearing to find out that a witness who swore to probable cause, factual and probable cause was not the right witness or did not have the facts and so forth, the cases I think which are totally in apposite to the construction of this language in the statute about invalidity on the face of it.

I think that when one gets away -- Oh!

I should add I think that this reading not only comports with standard statutory analysis and what the indication of legislative intent that we have, it also makes common sense because of the criminal penalties for wrongful disclosure and because of the civil liability or wrongful disclosure.

It seems to me that we’re talking about Fourth Amendment values privacy in those areas and that’s what the suppression provisions are talking about which are not involved in this case.

Justice Potter Stewart: Probably there are good many other provisions in the statute which are restrictions and limitations and conditions limiting the circumstances under which wiretapping can be or -- can be lawfully carried on in addition to the ones we’re talking about here.

For example, let’s take for example 18 United States Code 2518 (1) (c), the exhaustion requirements as I think about it, I would -- do you have to -- there has to be a statement to the Court that all other reasonable means have been tried and have failed or have an explanation of why they had not been.

Now, let’s say that that was put in conclusionary form that looked all right to the Court but turned out to be absolutely false, concededly false that no effort had been made and no other effort.

This was just a lazy person who wanted to intercept the telephone conversations.

What do -- wouldn’t your argument mean that that -- there would be no sanction for that either.

There could be suppression because that’s not constitutional at all?

Mr. Bork: No.

But -- Mr. Justice Stewart I think I would not exclude the possibility that in cases of willful misleading of a court, this Court might care to use its supervisory powers.

Justice Potter Stewart: Well, I’m talking about -- I’m really not talking about supervisory powers.

Well, I’m talking about the meaning of 2518 (10) (a) (1) that the communication was unlawfully intercepted and then your point as I gather it is that unlawfully means unconstitutionally.

That may oversimplify your point, but that’s basically it, as I gather it?

Mr. Bork: I think so Mr. Justice Stewart.

That’s the core of the point.

Justice Potter Stewart: Right.

Mr. Bork: That would not exclude the possibility of that in a case where the investigator you mentioned --

Justice Potter Stewart: Just had been exhausted although he said he did but that -- then it became clear --

Mr. Bork: They did an intention --

Justice Potter Stewart: One or another that he hadn’t. Let's say he was in good faith.

If he thought he’d had exhausted, he read this and he looked out at it, he said any fellows, eyewitnesses to that crime and nobody was and he thought that was enough of an exhaustion.

Mr. Bork: If it was in good faith Mr. Justice Stewart, I think I would -- I think I have to say that --

Justice Potter Stewart: Your argument --

Mr. Bork: The suppression provisions do not apply to it.

Justice Potter Stewart: That’s what I thought your argument would lead to.

Only --

Mr. Bork: Congress could apply them at any time.

Justice Potter Stewart: Oh!

I understand that but -- so your point really is that unlawfully means unconstitutionally, isn’t it?

Mr. Bork: In terms of the statute, Mr. Justice Stewart --

Justice Potter Stewart: It may apply 2518 (10) (a) (1).

Mr. Bork: In terms of the statute I think Mr. Justice Stewart that is probably correct.

I think I would like to reserve the possibility that a willful violation of the statute might be read either under one as a reason for suppression or that the Court might use its supervisory powers.

Justice Potter Stewart: Well, my question was directed to one, to the statute.

Mr. Bork: I think I would like.

If I may to reserve the possibility that willful violation of the statute, one that was done with the bad motive to achieve a result that could or what would be achieved.

Justice Potter Stewart: Or you must lead the Court --

Mr. Bork: Yes, to achieve a result that couldn't otherwise be achieved.

I should point out that --

Justice Potter Stewart: To get the issuance of a warrant that otherwise have -- wouldn’t and could’ve had issued.

Mr. Bork: That’s correct.

Justice Potter Stewart: Knowingly.

Mr. Bork: That’s correct.

Chief Justice Warren E. Burger: As to number one Mr. Solicitor General, would that embrace a situation where the United States Attorney in the field or his assistant just went out and placed the tap without any authority from anybody, would that be --

Mr. Bork: Oh!

That would certainly Mr. Chief Justice be a violation of one.

Chief Justice Warren E. Burger: Now the -- yes.

That would be one of the kinds of things that would be under number one --

Mr. Bork: Or a case in which the probable cause was absent.

Chief Justice Warren E. Burger: No authority whatever.

Well, I was starting from the [Voice Overlap] --

Mr. Bork: Yes, certainly Mr. Chief Justice that is certainly true.

Chief Justice Warren E. Burger: And then there would be a spectrum of situations --

Mr. Bork: Well, there are wide varieties of situation in which this would apply.

Chief Justice Warren E. Burger: -- under -- this would all fall under number one.

Mr. Bork: Correct Mr. Chief Justice.

For example, I would think failure to minimize the number of interceptions, failure to terminate when you got the evidence that you’re suppose to get.

I think those are all cases which would come under number one.

There are a great many of them.

I don’t think the situation we have here today is, unless one reads number one to say that any deviation from any provision of the statute requires suppression and I don’t think one can read it that way.

Justice Potter Stewart: What were these -- what are the sanctions then?

What is the sanction for it?

This – that's assuming and I know you don’t concede but let’s assume that these were violations of the statute.

What are the sanctions?

Mr. Bork: Well, I think they lie primarily with Congress.

Justice Potter Stewart: Well, Congress has enacted this law and said what they’d wanted to take place.

Mr. Bork: That’s correct.

Justice Potter Stewart: That the Congress has done its job.

Mr. Bork: Mr. Justice Stewart, what I meant by that was that if the Congress wishes to add a sanction that’s where the sanction should come from.

Should the Government, it is quite conceivable that should the Government having once realized that its procedure, well I’m unassuming now for the sake of argument that procedures are deficient, should the Government once realized that those procedures are deficient and continue with the process then I think I would have no particular difficulty in saying that a Court faced with that kind of Government intransitives ought to apply as a supervisory matter, suppression.

Justice Potter Stewart: Well, Congress here wasn’t concerned really with the -- with good faith.

It was primarily concerned with limiting the conditions and circumstances under which there could be a wiretap or a wire interception.

Mr. Bork: That is correct.

Justice Potter Stewart: And these are just dead letters that if there’s no sanction.

Mr. Bork: Mr. Justice Stewart I don’t think --

Justice Potter Stewart: Even if they’re -- even if the violations are in all good faith, whether the violations of the kind involved in the cases now before us or the violation of the kind that I suggested under 2510, whatever it is -- 2518 (1) (a) -- (1) (c), no exhaustion, Congress said there cannot be even if it should -- must not be wire interceptions until all other means have failed for example and under your view, they're -- they're just -- will continue to be such interceptions if you get --

Justice William O. Douglas: In that connection, when cases come here from the state courts it’s traditionally been the argument that the remedy, the sanctions are [Inaudible] and prosecute the policemen, or the man, criminal for doing this unlawful taps or secondly the citizen who send your -- sue under 1983 for damages, do you think if those alternatives would be available here?

Mr. Bork: If as a willful disclosure of a kind that the statute forbids Mr. Justice Douglas, there isn’t.

Justice William O. Douglas: How about violations of a procedure, for generating the search?

Mr. Bork: No I doubt Mr. Justice Douglas that I would think that the delegation from this -- I’m sure I would think that the delegation from Mr. Mitchell and Mr. Lindenbaum does not generate either criminal or civil liability and I think the misidentification of Mr. Wilson does not generate either of those varieties --

Justice William O. Douglas: Then Justice Stewart was right to get down to those sanctions and unless its suppressed.

Mr. Bork: Well Mr. Justice Stewart -- I mean Mr. Justice Douglas, if I may say -- I may say the sanctions have been specified by Congress and the fact that they did not specify this sanction, I think ought to mean something as well as the --

Justice Potter Stewart: Well, it means these words are just precatory?

Mr. Bork: They are precatory with, if I may say, one exception.

It seems to me that the Courts do have supervisory powers and if its willful or if it continues once its been -- once it has been ruled that these procedures are not adequate then they’re no longer precatory.

This Court would have the power at that stage to begin the suppress not under the statute.

Justice Potter Stewart: Then you -- your argument is the statute would not have been -- it would not be under a one or two?

Mr. Bork: That is correct.

Justice Potter Stewart: Right.

Or three?

Mr. Bork: That is correct.

Chief Justice Warren E. Burger: Do you think the statute would have a different meaning Mr. Solicitor General if now calling your attention first to 2518 where all the language is mandatory shall be made in writing, shall the state the applicant’s authority, shall include the following.

Having that in mind and then dropping down to (10) (a), instead of reading as it does now, any aggrieved person may move to suppress.

Thus the statute had read that any evidence obtained in -- not in conformity with the following paragraphs, one, two and three shall be excluded from evidence for all purposes.

Do you think my hypothetical statute that I’ve just tried to construct would be a different statute form one that was written?

Mr. Bork: No Mr. Chief Justice, I do not.

It seems to me that the grounds for suppression would remain the same.

It would be different only --

Chief Justice Warren E. Burger: Now, but this does not anywhere in the statute to say anything about what the Court shall do.

It says what the party may do.

The party may move to suppress.

That certainly gives an implication that the Courts -- this isn’t an idle gesture and that the court is going to entertain the motion.

Now, what is the range of the judge’s discretion when that motion is made in your view?

Mr. Bork: In my view Mr. Chief Justice, if a communication was unlawfully intercepted in the sense that we’ve been talking about, I doubt that the judge has any discretion.

Chief Justice Warren E. Burger: Well, then how about number two?

Mr. Bork: Oh!

I would think he had no discretion there either.

If the order is insufficient on its face I think the evidence must be suppressed and should -- and the order should not have been followed by the man who went out and apply the device to the wire.

Justice Potter Stewart: Therefore it would have been an unconstitutional tap?

Mr. Bork: Well, that is correct.

Justice Potter Stewart: With an insufficient warrant?

Mr. Bork: And if he doesn’t follow the terms of the order, I think it must be suppressed as well.

Justice William J. Brennan: Well, Mr. Solicitor General, do you -- are you suggesting that 2518 is to be read without reference to 2515?

Mr. Bork: No Mr. Justice Brennan, I think if 2518 (10) (a) as we just read in the Senate Report here a moment ago on page 39, was it -- its -- what they say -- the Senate said that 2515 must be read in the light of Section 2518 (10) (a).

I think 2518 (10) (a) is clearly the implementing.

Justice William J. Brennan: But 2515 is certainly explicit, isn’t it?

Mr. Bork: Not terribly Mr. Justice Brennan.

Justice William J. Brennan: Well, I don’t think this statute is certainly is a model of clarity by any means, and like any of us who had to wrestle with it, but we think so but at least 2515 is susceptible, isn’t it?

And the interpretation, no evidence derived there from, maybe received in evidence, any trial before any court that the disclosure would be in violation of this chapter?

Mr. Bork: Well, one has to discover then Mr. Justice Brennan what disclosure would be in violation of this chapter and then you get back to the suppression provisions.

Chief Justice Warren E. Burger: But it does incorporate into the statute, the judicially constructed exclusionary rule, does it not?

Mr. Bork: Oh!

Yes.

Chief Justice Warren E. Burger: No question about that.

Mr. Bork: No question Mr. Chief Justice but I think the 2515 point is important because you only know what disclosure Mr. Justice Brennan, is in violation of the statute by knowing what may not be disclosed.

That is what may -- must be suppressed.

Justice Byron R. White: Well, once you decide what that is, what is unlawful then you get to your point that the -- if you decide it’s unlawful, there's no discretion.

You must suppress it.

Mr. Bork: I think so.

Justice Byron R. White: Under -- because 2515 said so.

Mr. Bork: That is correct.

Justice Byron R. White: Your argument is not 2518, 2515 says, it must be suppressed, right?

Mr. Bork: I think that’s correct.

Justice William O. Douglas: Your Argument Solicitor General it seems to me that if the man is is not in the prison, it has echoes of the harmless error argument.

Everything you say, there’s nothing -- they violate the statute that it was -- in an irrelevant, immaterial way?

Mr. Bork: Well, Mr. Justice Douglas I think there is an echo in that particularly as to the Will Wilson misidentification issue.

I -- but I’m but -- it is a harmless error for this reason.

No constitutional rights were violated.

No wiretaps occurred that would not otherwise have occurred.

The evidence is accurate, there’s no question here of convicting the innocent with evidence that maybe inaccurate.

And there was no deterrence function to be served at this time.

These are abandoned procedures, the Department of Justice is not going back to them.

There was no purpose in them in the first place except a mix up under memorandum.

And indeed were there to be a ruling that the procedures were inadequate, it seems to me that it would be every reason in the world to rule that -- that ruling had prospective application only.

So, there’s no deterrent function and that would’ve -- that would adequately serve any deterrent function there was.

Chief Justice Warren E. Burger: In this respect do you, distinguish it all between what we might call this, the Lindenbaum authorizations and those actually made by the Attorney General but which Mr. Wilson did not in fact act upon.

Is there any difference in your mind?

Mr. Bork: I don’t think in this connection Mr. Chief Justice that I would make any.

We had -- the Department of Justice had excellent reason to believe that Mr. Mitchell had the power and the lawful right to delegate this to Mr. Lindenbaum and perhaps I should address that for the moment because this certainly goes --

Chief Justice Warren E. Burger: Before you do for a moment.

Is it -- the strength of your argument that if in fact the Attorney General who had the power did make the decision that the confusion about Mr. Will Wilson is irrelevant because the Attorney General had greater power, since he was the source of the power, it has made no difference, is that?

Mr. Bork: Mr. Chief Justice, essentially that if the Attorney General himself made the decision and through this confusion about memorandum, Mr. Wilson’s name got sent out when it shouldn’t have, it seems to me that that’s error, it seems to be that it shouldn’t happen, but I certainly if anything is harmless error that is -- there is certainly no reason to say that a judge who has found all the constitutional elements, probable cause, need for wire interception, failure of other techniques and so forth would have turned down the application had he been told that the Attorney General, rather than the Assistant Attorney General has authorized it.

So I can’t -- it seems to me that that’s utterly harmless error.

But on the Lindenbaum-Mitchell delegation which I think is the next question that follows from the question you just asked Mr. Chief Justice, I think it’s clear, now I’m now moving from the argument that there is no case when a suppression of evidence.

And if there were a case, it should be perspective only to the argument that in fact the statute was complied with in major respects, in the major respects.

The purpose of Section 2516 (1) which is the Section that governs -- that says it must be the Attorney -- the Attorney General may authorize or specially designated Assistant Attorney General is stated in language in the Senate Report which is quoted on page 54 of our brief in the Giordano case and the purpose is to centralize policy to get uniformity of policy and to have a publicly responsible official.

I think both of those purposes were completely satisfied when the Attorney General said, “When I’m unavailable, Mr. Lindenbaum you know my policies, you are directly in the Attorney General’s office.

You work with me everyday, when I’m unavailable you go ahead and act.”

That is, that purpose is served.

You have centralization, a unity of policy and you have Mr. Mitchell responsible.

Now, the question is whether the statute forbids that delegation.

I think rather clearly it does not forbid that delegation.

You have as we pointed out in our brief at page 60 and this is by no means our only reliance.

The general delegation statute for the Department of Justice, 28 U.S.C. Section 510, it gives the Attorney General power to authorize others to perform any function of the Attorney General and the law generally allows delegations of this sort.

We have cited a series of them at page 53 of the brief.

You have Title III, the same statute we’re dealing with here, 18 U.S.C. 2514 which is the witness immunity statute which is -- it’s given to the -- Attorney General is given the power to grant a witness immunity and it has been held that that function of the Attorney General, given to the Attorney General by the statute maybe delegated.

You have I think an even clearer example in the second paragraph at the footnote on that page, in the case of Jay against Boyd construing 8 U.S.C. 1254, a statute which says that the Attorney General “may in his discretion” suspend the part -- deportation of any alien.

That language seems to me to imply even more than the language in the statute we’re examining.

That it is a personal decision of the Attorney General and that -- yet this Court has held that that statutory power maybe delegated and in Kleindienst against Mandel which is quoted at the bottom of that footnote, the Attorney General was given discretion which was in fact in that case exercised by the Immigration and Naturalization Service.

He delegated it.

So that Mr. Mitchell and Mr. Lindenbaum were operating against the background of statutes was a general delegation statute and specific other statutes giving the Attorney General the power or the duty to do things which had been delegated in which delegations have been upheld in the past.

Justice Potter Stewart: Your argument would be very convincing if the sta -- if this statute now before us had simply said the Attorney General.

But when it adds or any Assistant Attorney General specially designated by the Attorney General does detract from the argument that there’s an inherent delegation of authority to delegate to other people.

Mr. Bork: I think it does Mr. Justice Stewart and I think to this extent.

I think there’s a limitation obviously but I think the limitation is best read as to the office, the immediate control of one of these two officials.

And I say that because we have two examples in our brief on page 57 and page 58 in which this same Congress had provided a couple of months before that something must be done by the Attorney General or the Deputy Attorney General which parallels the language we’re talking about and then Congress went on and said, “Which function may not be delegated?”

Now, when you compare that with the language here, I think Mr. Mitchell and Mr. Lindenbaum had a right to say, here as an Attorney General and a Deputy Attorney General, just is in the statute, Attorney General and Assistant Attorney General.

In the civil rights act they say it may not be delegated, in this statute they don’t say it which I think gave them a right to think that some delegation within the office was possible.

Again, the Federal Food, Drug and Cosmetics Act which we discussed on page 50 has the same kind of language about the Secretary Health, Education and Welfare.

There -- and I should say one more thing, if you look, if one looks at the 2516 (2), we see that Congress clearly allows hundreds of state prosecutors to authorize these applications and in fact, in the legislative history which we quote in the brief, it says the question of whether the state officer may delegate, State Attorney General may delegate will be controlled by the law of delegation of the state.

Now, that takes the heart out of this argument that Congress was so concerned that the Attorney General himself had to involve himself from the minutiae of every application for a wire interception order.

Justice William J. Brennan: Didn't the draft of this statute, Mr. Solicitor General would have authorized the United States Attorney to make the application?

Mr. Bork: It was a draft of that sort.

Justice William J. Brennan: And I gather the -- it was justice that came in and said, it was Mr. Miller wasn’t it that preferred it limit to the Attorney General or an assistant designated by him?

Mr. Bork: That’s correct.

That’s correct and I think he suggested that and I think when one looks at that against the law of delegation and the su -- and the law of no delegation which Congress had worked out, I think it's quite clear that they’re talking about the Attorney General and his immediate office and any Assistant Attorney General in his immediate office and I think the state cases indicate the same policy.

Justice William H. Rehnquist: Well, might not Congress had felt all that, in the case of the states that was pretty much as matter for the states to decide for themselves but in the case of the federal government, they wanted to lay down more stringent standards than they were willing to impose on the state?

Mr. Bork: Mr. Justice Rehnquist, it seems to me that that would be a very curious result in the state in that way because what that would mean is that Congress was really not terribly concerned about unitary policies of any kind.

They were more suspicious of the Department of Justice of the Federal Government than they were in the proliferation of state and local and county governments across the nation.

I think the purpose Congress had was in unifying policy, they did not mind delegations so long as the policy was unified and you could identify the man who was responsible even though it delegated it.

I think it’s true in the State Government, I think that’s true in the Federal Government under standard delegation law that we’ve just discussed.

Justice William H. Rehnquist: Well of course then it's virtually an abandonment of the notion that you don’t -- that you want to identify the man, to say so, he can delegate it so long as his signature appears because presumably in the most elaborate bureaucracy in the world, the headman signature appears on the thing before it goes out?

Mr. Bork: No, no, when I said delegation Mr. Justice Rehnquist, what I meant was this statutes says to the Attorney General, unless you designate an Assistant Attorney General, you are the man to be held responsible and we want uniformity of policy and that is accomplished when he takes a man as executive assistant whom -- who has done 50 or 60 of these applications and says now you know my policy, when I’m unavailable, act, tell me when I get back.

And it seems to me that that is consistent with what we mean by, it limits the scope of delegation, it keeps the thing within a narrow campus.

It seems to me, given the state, the way Congress treated the states, it’s the much more realistic reading of the Congressional policy.

Justice Thurgood Marshall: [Inaudible] Mr. Will Wilson?

Mr. Bork: I beg your pardon?

Justice Thurgood Marshall: Why he didn’t give Will Wilson an authority while he was out of town?

Mr. Bork: Mr. --

Justice Thurgood Marshall: After all, Will Wilson was approved by Congress, wasn’t he?

Mr. Bork: Oh!

Yes, Mr. Justice Marshall.

Justice Thurgood Marshall: And Mr. Lindenbaum was not.

Mr. Bork: That is correct Mr. Justice Marshall.

Justice Thurgood Marshall: I don’t mean Congress, I mean the Senate.

What I mean, it was a approved officer?

Mr. Bork: That is correct.

Justice Thurgood Marshall: And you -- why I think your answers would have been better if he had done it but it’s not wrong the way he did it and that --

Mr. Bork: As a matter of fact, I think it might have been better Mr. Justice Marshall the way he did do it because the Attorney General did not want to designate any Assistant Attorney General to exercise this operative -- to make the operative decision.

He thought he had in Mr. Lindenbaum and in fact, he did have in Mr. Lindenbaum, a man who would follow his policies exactly, and act only when he was unavailable.

Justice Potter Stewart: Alter ego.

Justice Thurgood Marshall: Well, I -- are the Deputy Attorney General that go over run around loose over there?

Mr. Bork: [Attempt to Laughter] Well, it varies from time to time Mr. Justice Marshall.

Deputy Attorney Generals?

Justice Thurgood Marshall: Assistant Attorney General?

Mr. Bork: That run around, you mean are there irresponsible Assistant Attorney Generals?

Justice Thurgood Marshall: Yes, of course there are, the Attorney General, aren’t they?

Mr. Bork: Yes, but not in day-to-day contact.

Justice Thurgood Marshall: They don’t -- they carry out the policy of the Attorney General.

Mr. Bork: They do indeed Mr. Justice Marshall.

I think --

Justice Thurgood Marshall: Oh!

When you carry out the policy, didn’t he participate that in many of these cases as Mr. Lindenbaum did?

Mr. Bork: Mr. Wilson?

Justice Thurgood Marshall: Of course he did.

Mr. Bork: No, apparently, Mr. Wilson had very -- one might say minimal involvement in any of these cases.

Justice Thurgood Marshall: Who did?

Who was his deputy?

Mr. Bork: His deputies were Mr. Peterson, Mr. Shapiro were greatly involved as the memorandum were going up, they approved them.

But the operative decision was Mr. Mitchell’s except in those cases where he was unavailable and then it was Mr. Lindenbaum carrying out Mr. Mitchell’s policies and I think Mr. Mitchell thought that that was greater control over the decision than it would have been had he designated --

Justice Thurgood Marshall: And when he went away he says on other things, you take over too, assuming that?

Mr. Bork: Oh!

The executive assistant acts in many ways for the Attorney General on routine matters when he understands the Attorney General’s policy in many cases which is another reason, pardon me, which is another reason why they thought this was perfectly acceptable.

Chief Justice Warren E. Burger: You spoke of a special unit handling these matters.

Was that a special unit apart from the Criminal Division or within the Criminal Division?

Mr. Bork: Within the organized crime section of the Criminal Division.

Chief Justice Warren E. Burger: Well now is that -- are you suggesting that that had a certain autonomy and that they were functioning in this special field on their --

Mr. Bork: No, Mr. Chief Justice, they didn’t have any autonomy in that sense.

Chief Justice Warren E. Burger: Autonomy, I’m speaking, autonomy from the regular staff line of command of the Criminal Division.

Mr. Bork: No, not autonomy Mr. Chief Justice, they were specialized and it was their specialized function to make the initial review of these matters before sending it up the hierarchy through the Criminal Division but they had no autonomy.

Thank you.

Chief Justice Warren E. Burger: Mr. Smouse.

Argument of H. Russel Smouse

Mr. H. Russel Smouse: Mr. Chief Justice and may it please the Court.

In the Giordano case the Court has confronted with compounded violations of Title III, specifically Sections 2516 (1) and 2518 (1) (a) and (4) (d).

As for the Section 2516 point, the fact is that on October 16, 1970, Francis S. Brocato, an Assistant United States Attorney for the District of Maryland submitted to Chief Judge Northrop of the United State District Court for Maryland, an application for an order authorizing the interception of wire communications on the telephone of my client, Dominic Nicholas Giordano.

Attached to the application as exhibits were a “Will Wilson letter” to Mr. Brocato and the affidavits of two agents of the Bureau of Narcotics and Dangerous Drugs.

The Will Wilson letter evidences the fact that Mr. Brocato had requested authorization to apply for the wiretap order, this request having been made to then Attorney General John N. Mitchell.

Although the request had been directed to the Attorney General, the record submitted in this case shows that it never was reviewed by the Attorney General himself, but that his initials had been placed on the authorization memorandum by Mr. Sol Lindenbaum, his Executive Assistant.

This authorization memorandum had then been dispatched to Assistant Attorney General Will Wilson or the Office of Assistant Attorney General Will Wilson purportedly designating Mr. Wilson to authorize the application to be presented to the United States District Court for the District of Maryland.

The record in this case and in the case of murder in the evidentiary hearing held before Judge Merchants (ph) in the Southern District of Florida, evidences the fact that the Attorney General had never specially designated any of his Assistant Attorneys General to issue wiretap authorizations.

It is also uncontested that the Will Wilson letters indeed were never signed by Mr. Wilson, not in this case nor indeed in any of the host of cases which have arisen in this series of litigation.

There was subsequent to the application for a wiretap order, application for an extension order dated November 6, 1970, some 21 days after the original application.

I believe the Solicitor General indicated perhaps some seven days after the original application, the Attorney General had become familiar with the operative facts.

The affidavit of Mr. Lindenbaum indicates that some 21 days later, the Attorney General authorized the application for an extension.

Included within that application for extension was another Will Wilson letter and an additional affidavit from agent Abraham Azaon (ph) of the Bureau of Narcotics and Dangerous Drugs.

On review of the Azaon affidavit, it is to be noted that the operative facts setting forth probable cause are those investigative details and intelligence which developed pursuant to the original wiretap.

The Government I believe in its brief indicates that the Azaon application reasserts the facts that was set forth in the original application, indeed, they do not.

It merely states I reassert without specifying what those facts were, the fact set forth in the original application, indeed, it is an incorporation by reference type approach.

I would ask this Honorable Court to look critically at the particular facts in the case at hand as indeed I suspect they are at perhaps some variance from the facts which the Government indicates in its brief developed at some subsequent point in time with regard to checking with the Attorney General and apprising him of the facts after the fact.

As for the Section 2518 point, it must be noted that not only did Mr. Wilson not sign the letter, he indeed never saw any of the papers in this case nor indeed did the Attorney General prior to the application for the extension order.

Mr. Wilson testified as I indicated before at the evidentiary hearing in the Southern District of Florida in the Marder case, at which time he stated he did not know that the Will Wilson letter was being submitted to United State District Courts around the country.

In fact, he testified the “did not know exactly what was made of them.”

He did not know that Mr. Lindenbaum was signing the Attorney Generals initials to authorization memos.

He did not know that anyone other than the Attorney General, in fact, was authorizing wiretaps.

I would submit to this Honorable Court that this suggests a rather amazing lack of communication within the Department of Justice.

This incredibly loose procedure led the late Judge Sobeloff to conclude in his opinion below and I quote “If Judge Northrop had been aware of the real status of the application, that neither Mitchell nor Wilson even knew of it and that the application had been approved and initialed JNM by Lindenbaum, we are certain that he would have refused to permit the wiretap.”

The sequence of events here involve I submit constitutes the “elaborate paper charade” which the United States Court of Appeals for the Ninth Circuit condemned in the King case.

It is significant that where the violations herein question have been shown to exist in combination, the vast majority of Federal Courts have found a violation of 2516 and have decreed suppression as the remedy.

In addition to the Giordano case in the Fourth Circuit, there is the opinion of course of the Robinson Court in the Fifth Circuit, the per curiam opinion in the Robert’s case in the Seventh Circuit, the opinion of the Ninth Circuit in the King Case and the opinion of the Court of Appeals for the District of Columbia in the Mantello case.

In addition, to the --

Justice Potter Stewart: And all of the -- excuse me, go ahead.

Justice William J. Brennan: I just want to know, are any Court of Appeals, the other way?

Mr. H. Russel Smouse: The Pisacano case Mr. Justice Brennan, in the Second Circuit which was later followed although I must say I don’t feel embraced by the opinion in the Becker case, Judge Friendly wrote -- Chief Judge Friendly wrote the opinion in Pisacano, Judge Mansfield wrote the Becker opinion.

Justice William J. Brennan: But it’s only the Second Circuit.

Justice William H. Rehnquist: Did it happen --

Mr. H. Russel Smouse: The Second Circuit, is the only Circuit that I am aware of Mr. Justice Brennan to the contrary.

Justice William H. Rehnquist: Did Robinson ever come out en banc from the Fifth Circuit?

Mr. H. Russel Smouse: It did Mr. Justice, not en banc.

It was remanded for an evidentiary hearing after the en banc hearing.

It went back to the Southern District of Florida.

The evidentiary hearing was conducted in the Marder case and I gather the case is now pending in the Fifth Circuit again.

Justice William H. Rehnquist: But there was an appeal of the Court of Appeals, the Fifth Circuit en banc in Robinson?

Mr. H. Russel Smouse: The original opinion resulted in a petition for rehearing.

Rehearing was conducted en banc, remanded for an evidentiary hearing to the Southern District of Florida in the Marder case.

Justice Potter Stewart: My question was, we’ve just -- we’ve just -- while you’re already interrupted, you said that all of these courts with the exceptions you’ve now noticed -- noted have decreed suppression.

Have all of them without exception relied on 2518 (10) (a) or have they done it in the exercise of -- the purported exercise with some supervisory power?

Mr. H. Russel Smouse: In reliance on 2515 and 2518 (10) (a).

Justice Potter Stewart: So they’ve held, more accurately they’ve held that the statute compels suppression, correct?

Mr. H. Russel Smouse: That is precisely correct.

In addition to the Circuits which have so held, a number of District Courts in other Circuits, specifically two Courts I believe in the Third Circuit and courts in the Sixth Circuit have ruled in like manner.

Chief Justice Warren E. Burger: In other words, your case, to be sure I have it absolutely clear, withstand independent -- independently even if there was no such thing as the doctrine of exclusion of evidence.

Mr. H. Russel Smouse: Yes Your Honor, we feel that the remedy here --

Chief Justice Warren E. Burger: The Statute has prescribed the remedy, is your case --

Mr. H. Russel Smouse: That is correct Mr. Chief Justice.

We feel that Title III is self executing as to remedy.

The Robert’s Courts speaks of the persuasive reason -- reasoning of Judge Sobeloff in Giordano.

Indeed Giordano seems to be the case most frequently looked to for guidance, most frequently cited and whose language is most frequently adopted by other Courts.

The Court’s have with overwhelming consistency really viewed the 2516 defect as a substantial violation.

With this background in mind, I would like to turn to Section 2516 with the rationale for that Section and speak to the Government’s contentions concerning the Section.

Judge Sobeloff in his opinion below effectively lays to rest the alter ego theory which has with recurring predictability been advanced by the Government.

Judge Sobeloff stating in pertinent part, “the alter ego theory is open ended.

It need not stop with Lindenbaum but could be extended with an equal claim of validity to anyone within or without the Department of Justice.

In determining who qualifies as an alter ego, it would permit side stepping the Congressional mandate, fixing the level of those who maybe designated to authorize applications.”

Senate Report 1097 is instructive wherein referring to Section 2516 (1), it is stated and I quote this language which has earlier been referred to by I believe Mr. Justice Brennan but which I feel bears repeating, “This provision centralizes in a publicly responsible officials subject to the political process, the formulation of law enforcement policy on the use of electronic surveillance techniques.

Centralization will avoid the possibility that divergent practices might develop, should abuses occur, the lines of responsibility lead to an identifiable person.”

The legislative history of course speaks to identifiable person and not an identifiable office.

In the first Robinson case, the Court after noting this --

Chief Justice Warren E. Burger: Well, let me get that last.

It does lead to an identifiable office, does it not?

Mr. H. Russel Smouse: I submit it does not Your Honor.

Identifiable persons speaks of that individual either --

Chief Justice Warren E. Burger: Well, the incumbent, whoever is the incumbent of that office is the identifiable person, is he not?

Mr. H. Russel Smouse: He is --

Chief Justice Warren E. Burger: Whoever is, the Attorney General --?

Mr. H. Russel Smouse: Yes, he is Mr. Chief Justice, the Attorney General.

Chief Justice Warren E. Burger: So it’s an identifiable office in terms of which changes, in terms of the incumbency from time to time.

Mr. H. Russel Smouse: That is correct Mr. Chief Justice.

I submit to what the Senate reflects in this legislative history is that they are speaking though of the person either in the position of Attorney General or one of his Assistant Attorneys General who has gone through the process of senatorial confirmation.

The Senate obliged to exercise this degree of supervision shall we say or restraint over exercise of the awesome power of wire surveillance.

Chief Justice Warren E. Burger: Could the Attorney General have under this statute lawfully designated all of the Assistant Attorneys General?

Mr. H. Russel Smouse: He could Your Honor.

Chief Justice Warren E. Burger: And Acting Assistant Attorneys General?

Mr. H. Russel Smouse: I cannot speak to acting Assistants, I’m not sure that they receive, they have gone through the --

Chief Justice Warren E. Burger: They do not.

Mr. H. Russel Smouse: They have not gone through the confirmation process I would say no to that Mr. Chief Justice.

Chief Justice Warren E. Burger: Where in the statute do you find this limited to those confirmed by the Senate?

Mr. H. Russel Smouse: In the legislative history, actually Senate Report 1097, where it speaks to official subject to the political process and I submit that means the confirmation process, that is the rationale really of the Fifth Circuit in the Robinson case wherein that court noted by expressing its intention that only a publicly responsible official subject to the political process could initiate a wiretap application.

Congress wanted to make certain that every such matter would have the personal attention of an individual appointed by the President and confirmed by the Senate.

Justice Harry A. Blackmun: Then you would also exclude an acting Attorney General?

Mr. H. Russel Smouse: I would Your Honor unless he had as I believe Mr. Clinding has been confirmed, I believed he had been confirmed as deputy.

Justice William J. Brennan: Well, how about the last acting Attorney General, Mr --

Chief Justice Warren E. Burger: The present Solicitor General.

Justice Harry A. Blackmun: Who was confirmed as Solicitor General but not as Attorney General.

Mr. H. Russel Smouse: He has been tested by the political process.[Laughter]

Chief Justice Warren E. Burger: Mr. Smouse, is it essential to your case that that be that -- the standard.

Is not the Deputy Assistant Attorney General where they have one as much subject to the political process in the sense that if the Assistant Attorney General is dismissed, leaves or resigns, the Deputy Assistant Attorney General is there at sufferance.

Are not all the political, the truly political appointees whether appointed by the President or by the Attorney General, are they not at all responsive to the political process?

Mr. H. Russel Smouse: Yes Mr. Chief Justice, they are involved in the political process --

Chief Justice Warren E. Burger: Only the --

Mr. H. Russel Smouse: But they have not been Senatorially confirmed and I feel that Senate meant --

Chief Justice Warren E. Burger: No, the statute doesn’t say anything about Senatorially confirmed.

You draw that from the legislative history.

Mr. H. Russel Smouse: I do Mr. Chief Justice.

Chief Justice Warren E. Burger: But you got it from the language, the political language but surely a Deputy Assistant Attorney General selected whether by the Assistant Attorney General himself or by the Attorney General, but in fact appointed by the Attorney General is politically responsive is the sense of that legislative history, is he not?

Mr. H. Russel Smouse: I submit Mr. Chief Justice that that confirmation is what the senate had in mind.

Chief Justice Warren E. Burger: Where do they particularly say that?

Mr. H. Russel Smouse: They do not say it.

I fell that is inherent in the language of the legislative history and I feel that the interpretation placed on that history by a number of lower courts which have looked to the problem is --

Chief Justice Warren E. Burger: Each division of the Department of Justice has one, two or possibly three exempt positions at the top echelon, does it not?

Mr. H. Russel Smouse: I believe that is correct Mr. Chief Justice.

Chief Justice Warren E. Burger: And you say they are not embraced within this political process?

There’s something less than political but different from career?

Mr. H. Russel Smouse: A stamp of approval has not been placed on them by the Senate in an area where the Senate wanted great care exercise in the authorization of wiretap surveillance.

Chief Justice Warren E. Burger: Then, to pursue Mr. Justice Blackmun’s inquiry a few moments ago, if you had a period where you had an acting Attorney General appointed under a recess appointment, who might act for quite a while as some have, you would be immobilized under the statute.

Mr. H. Russel Smouse: That would easily be met Mr. Chief Justice had his predecessor designated an Assistant Attorney General to exercise authorization in this area and the Congress --

Chief Justice Warren E. Burger: Wouldn’t you -- wouldn’t the Government immediately run under the proposition that when a principal ceased to hold the power all his agents fell with him?

Mr. H. Russel Smouse: I think not Mr. Chief Justice, I feel that if the Attorney General had exercised the foresight here to designate the man chosen to head the Criminal Division to authorize wiretap applications obviously, there would not be this host of cases before the Courts.

Provision for delegation was made so that the Government could operate in an effective fashion in the area of criminal investigation and in utilization of wire surveillance.

It merely required some delegation within that authorized for the statute and easily enough, the Attorney General could have designated one his assistants and the acting Attorney General who might succeed him would have the benefit then of a person properly designated.

This Honorable Court in Gelbard through Mr. Justice Brennan writing for the majority made the following significant comment concerning Title III in noting that act sets forth and I quote, “An approval that may not be given except upon compliance with astringent condition,” citing 18 U.S.C. 2516 and 2518 (1) through (8) obviously and admittedly the Gelbard case did not involve any of the issues here before the Court but I feel that language is helpful and instructive.

The courts I submit in the better reason cases speak in terms of 2516 being enacted as a necessary safeguard as expressed in the following language in King.

The Act in its legislative history may clear the purpose of the authorization requirement 2516 (1), Congress was well aware of the grave threat to the privacy of every American that is posed by modern techniques of electronic surveillance.

In order to insure circumspection in their use, Congress erected the elaborate procedural safeguards, then citing 2516.

And as earlier been noted, the language of the statute authorizing but limiting the delegation evolved from the testimony of then Assistant Attorney General Miller, head of the Criminal Division.

The responsibility theory which the Government has advanced in his brief in this case in which forums, the underlying rationale of Pisacano, we submit ignores the complete legislative history and ignores the specifically limiting language of Section 2516 and as I noted before, Judge Mansfield in the Second Circuit in writing in Becker expressed no great enthusiasm for the Pisacano holding where he stated, “We feel bound to follow Pisacano especially since it is so recent and the facts before the Court are indistinguishable.

Our adherents to the law, the Circuit has thus established is not to be considered as an approval of the procedure followed by the Attorney General and his staff.”

With regard to the general delegation of authority, Section 28 U.S.C. Section 510 would submit that as stated in our brief, normal rules of statutory construction reject the applicability of that general delegation of authority.

Section 2516 is narrow, specific and limited in terms.

Moreover, 28 U.S.C. Section 510 was in existence prior to the enactment of Title III.

The Fifth Circuit in Robinson, I submit properly concluded that 2516 (1) was intended to act as a limit upon Section 510.

Concerning the remedy, the statute itself in Sections 2515 and 2518 (10) (a) (1) and (2) mandates the remedy and it should be noted that the violation here is of considerable dimension.

This is not an isolated case, not an incidental slip up.

From the host of cases where the violations herein question have been framed, it clearly appears that for a substantial period of time disregard to the statutory safeguards of Title III in the area of authorization and identification were continuing and constantly recurring within the Department Of Justice.

The Government seems to espouse this applicable -- the standard suggested by the American Law Institute.

It's footnoted on page 41 of the Government’s brief where it is proposed that the application of the exclusionary rule be determined by the substantiality of the infringement involved.

While as I noted before, we submit that the statute itself mandates the remedy and that we are not here dealing with the judicially framed exclusionary rule even looking at the test espoused by the government, it must be recognized that the course of conduct engaged in by the Department of Justice forded the clear requirements of Title III and the purpose of the Sections in question and the violation of them as I noted before was recurring and if quantum of impropriety is to be the applicable standard in this case then I submit that suppression must necessary follow.

Justice Potter Stewart: You rely on the 2518 (10) (a) (1) or (2) or I guess the answer is you rely on both?

Mr. H. Russel Smouse: I would rely on both Your Honor.

In fact Judge Sobeloff I believe spoke in terms of (2) and --

Justice Potter Stewart: (2) and now the District Court in terms of (1), wasn’t it [Voice Overlap] --

Mr. H. Russel Smouse: The District Court in this case and the Veckerelli (ph) case turned it, yes Your Honor that is correct, actually turned on the 2518 violation.

The Court of Appeals for the Fourth Circuit decided the case on the basis of the 2516 violation.

We submit that, actually, what the government here proposes is that this Honorable Court ignored the plain language of the statute.

The government moreover seems to fail to acknowledge the enormity of the violation involved and turns its argument or its approach on a proposition that the violations in question are not central to Fourth Amendment values and so sanction should be something less and suppression.

I submit that neither the plain language of the statute or legislative history nor judicial interpretation would support this contention.

This Honorable Court in Burger spoke in terms of protective procedures in the area of eavesdropping which of course would embrace wire surveillance, so as to ensure the protection of inherent Fourth Amendment rights.

I would submit that we are here dealing with the right of conversational privacy.

As noted in Scot, Title III represents the effort of Congress to meet the concerns expressed by this Honorable Court in Burger and Katz and to structure a limited system of wire surveillance and electronic eavesdropping within the framework of the Fourth Amendment and the guidelines of Burger and Katz.

Justice Thurgood Marshall: That’s already been done, hasn’t it?

Hadn't the Department of Justice already have done that?

Mr. H. Russel Smouse: They have changed and apparently corrected their procedures.

Justice Thurgood Marshall: We don’t have to do that [Inaudible], do we?

Mr. H. Russel Smouse: No Mr. Justice.

Justice Potter Stewart: Nothing in Burger or Katz that I can remember, you tell me if I’m wrong, said that in a federal case, the Attorney General or some specially designated assistant Attorney General had to approve it?

Mr. H. Russel Smouse: That is correct Mr. Justice Stewart, there is no such language in Burger and Katz.

Justice Potter Stewart: And you don’t suggest that anything in the constitution requires --

Mr. H. Russel Smouse: I do not.

Justice Potter Stewart: -- I take it as [Voice Overlap]

Mr. H. Russel Smouse: I do not.

Burger as the Court well knows spoke in terms of protective procedures.

Your Honor, I believe in Katz spoke in terms of appropriate safeguards.

Congress cognizant of this express concerned by this Court for the need to embrace protective procedures, framed Title III in an effort to meet those concerns and to meet Congressional concern over a limited approach in this area.

Again, if I may borrow from the language of Judge Sobeloff, rejecting the Government contention that suppression would be inappropriate, he stated and I quote, “This is a beautiful example of a bootstrap technique characterization with which judge Donahue in the Ninth Circuit readily agreed.”

He goes on to say, “first, the Government minimizes the violation of the various statutory provisions, characterizing them as technical defects and then in typical bootstrap fashion postulates that for minor violations, there should be no sanctions.

The defects in this case however go to the very heart of Title III.”

The Senate Report dealing with section 2515 provides that this Section must be read in light of Section 2518 (10) (a).

Again, the Gelbard opinion where Mr. Justice Brennan wrote for this Court is instructive in noting that indeed the Congressional findings articulate clearly the intent to utilize the evidentiary prohibition of 2515 to enforce the limitations imposed by Title III upon wiretapping and electronic surveillance.

The Seventh Circuit in Robert’s meets the Government’s argument as to the drastic remedy of suppression by noting that 2515 and 2518 (10) (a) are patently clear in expressing the Congressional judgment that these intercepted communications may not be received in evidence.

This whole area I submit is placed in perspective by this additional cogent statement by Chief Judge Bazelon in the case of In Re Evans wherein he said, “First, 2515 describes in the most sweeping possible terms of prohibition against the use of evidence tainted by an awful wiretap, but the Section gives no indication of a specific remedy.

Viewed as a whole, however, Omnibus Crime Control Act does provide such a remedy.

The motion to suppress authorized by 2518 (10) (a).”

The no need to deter argument rejected in Robinson which is here again advanced by the Government is disposed of in the Vicky (ph) case in the following fashion.

The Government claims that no real deterrent effect would result from suppression.

However, we are not dealing with the Court fashioned exclusionary rule.

What we have here is a separate statutory requirement which this Court has no authority to ignore.

Judge Becker enunciated the potential problem in the Narducci case wherein he stated, “The necessity for strict compliance with the statute in a wiretap situation stems as much from the precedence setting example of condoning laxity which could lead to further laxity in years to come.”

As for the 2518 point, I will defer to Mr. Hewitt, he’ll argue the Chavez case.

However, I would note that in this area, the Congress intended if indeed it be a matter of form, that form be treated as importantly as substance.

The implementation of this awesome authority, I submit, was to be treated in accordance with the statutory mandate.

In our brief, reference is made to a course of conduct here engaged in by the Department of Justice as amounting to scheme of governmental trickery.

On reflection, I submit and confess that this was too harsh a term to the extent that was too harsh a judgment, I apologize.

But if use of so dramatic a term is inappropriate, I would submit that what we have here is of course of governmental inattention, indeed, what I submit does amount to governmental willfulness and governmental sloppiness of a quality mounting up to gross mishandling in a particularly sensitive area, the appropriate remedy for which must necessarily be suppression of all evidence obtained from the wiretaps in this and cases similarly situated.

Thank you.

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

Mr. Hewitt.

Argument of James F. Hewitt

Mr. James F. Hewitt: Mr. Chief Justice, may it please the Court.

While the issues in Chavez involve both types of wiretaps here, the Sol Lindenbaum approved tap and the John Mitchell approved tap, since this Court granted the Government’s petition for certiorari limited to the issue of the tap purportedly approved by the Attorney General and the Chavez decision which based the decision as to that tap solely upon the application of 2518, I’ll try and limit my remarks to that aspect to this total problem, but there maybe some overlapping of necessity.

I would submit to the Court that this issue is important for two reasons.

First, it involves a very important question of Congressional intent in the enactment of this legislation that affects the very sensitive area in this modern electronic age.

And secondly, the important issue is whether or not there has been compliance by the Justice Department with this mandate of Congress which surrounds virtually this authorization to engage in these authorized wiretaps.

It’s obvious I think from the legislative history and certainly from the decision of the Ninth Circuit that the institutional decision was of some concern to Congress.

Mr. Justice Marshal asked the question of how often do these institutional decisions happen and I think it’s fair to say that they happen often enough over the history of our Justice Department that Congress was concerned about it and wanted to make sure that these wiretap applications would not be the subject of institutional decisions, they would not be rubber stamped and they would not be handled by a subordinate members of the Justice Department no matter how knowledgeable nor how responsible they might be in the performance of their duties.

It was for that reason that the legislative history is clear, that Congress wanted a responsible high ranking department official to make these decisions and recognizing that the Attorney General could not conceivably review and make these important decisions in every case, he was empowered to designate an Assistant Attorney General, a specifically identifiable officer within the department to act on these applications and make this decisions on his behalf.

Now, the purpose of this was obviously to fix responsibility on this identifiable person so that in later years or should a wiretap become a gross abuse of discretion, or abuse of prosecuted discretion, that Congress and the public and the Courts could put their finger on that responsible individual and point the finger -- the responsibility to him.

And for that reason, Congress made a rather unique provision in the statute that he be identified with particularity not only in the application but in the Court order itself.

That he’d be identified in the reports that the District Judge must make within 10 days after the completion of the wiretap.

That he’d be identified by the administrative officer of Courts and the annual report of the director and the annual report of the Judicial conference, so that this particular individual must be identified throughout the entire reporting scheme as the person who is responsible for the wiretap which bears his name.

And of course, the way to get this information is to have him set forth with accurate particularity in the application and the order.

Now, the statutory --

Justice Harry A. Blackmun: Let me ask you just a technical question, whom do you represent here?

Mr. James F. Hewitt: I represent the respondents in Chavez, Your Honor.

Justice Harry A. Blackmun: Respondents for --

Mr. James F. Hewitt: Well, I’m appointed to represent the respondent Apodaca but I’m appearing on behalf of the other respondents also.

Justice Harry A. Blackmun: Even though your brief is restricted to George Apodaca?

Mr. James F. Hewitt: That’s correct Your Honor.

He is the only one I was appointed by the District Court to represent.

Justice Harry A. Blackmun: But you are positioning yourself as representing all of them here?

Mr. James F. Hewitt: Yes Your Honor.

I believe there is correspondence in the file from some of the other counsels to that effect.

The statute sets forth in essence a broader, a broader set of requirements than are customarily have found in the search warrants.

It sets forth that there must be a finding of need for the wiretap.

There must be a finding of probable cause and there must be this important prosecutor decision by this responsible officer.

The mere fact that the District Judge need not pass upon the propriety of the prosecuted decision of the responsible officer, doesn’t make it any less and important prong of this protective device that Congress setup within the statutory scheme.

The Court does have to find a need for the wiretap and that other methods are unlikely to succeed if tried and must find probable cause, but the Court relying upon the representations in the papers presented to it, must assume that a proper prosecutor determination that this is the kind of case that justifies this gross intrusion has been made and find that it has been made by a responsible officer as named in the statute and this is where the Courts were misled in this particular case.

Now, the Government doesn’t seem to feel that’s a particularly important factor --

Chief Justice Warren E. Burger: Is it essential to your case Mr. Hewitt that the Court was in fact misled?

Mr. James F. Hewitt: No, I don’t believe so Your Honor because the statute wasn’t complied with if the wrong person was placed in.

Chief Justice Warren E. Burger: That’s the end if isn’t it?

Whether the court was affected by that or whether it was not affected from your case, that’s irrelevant?

Mr. James F. Hewitt: It is unnecessary, but it certainly makes the violation certainly more --

Chief Justice Warren E. Burger: But even if you stopped before you got to what the Judge believed or what he thought he was acting on or what he relied on, you think you’d have your case in the same posture you have it now?

Mr. James F. Hewitt: Yes, we would Your Honor.

And as a result --

Justice Thurgood Marshall: And if the audit said that it was done by Will Wilson and a matter of fact, it had been done by John Mitchell?

Mr. James F. Hewitt: It would be bad Your Honor because it identifies the wrong person.

When in later years someone wishes to put the finger of responsibility for the Chavez wiretap, they would go to the records of the Court, the records of the administrative office and Wilson would be the party responsible.

Justice Thurgood Marshall: And they would do what to Wilson?

Mr. James F. Hewitt: They might say, “Wilson how dare you authorize this improper wiretap.”

Mr. Wilson will say, “I didn’t sign that letter, it was signed by one of my subordinates.”

This is exactly what Congress wanted to prevent.

Justice Thurgood Marshall: I know, it’s not what I said.

I said where the letter is signed by Wilson and it says that I have approved this.

When as a matter of fact he had not approved this, but John Mitchell is courts to prove this.

Mr. James F. Hewitt: This is the position in the Chavez case Your Honor, that pretty much the status of the facts.

Justice Thurgood Marshall: And that’s wrong for what reason?

Mr. James F. Hewitt: Because the order must identify the person who actually approved the wiretap.

Justice Thurgood Marshall: Even though the subordinate signed it, the boss decided it?

Mr. James F. Hewitt: Yes Your Honor.

It must identify the proper person.

And the reason for this is so that this accurate information can you might say be disseminated to the interested parties, Congress and the public and certainly the District Judge who makes the determination.

Because of this false letter, because of this letter bearing someone else’s signature purporting to be Will Wilson and purporting to state in the body of the letter that Wilson reviewed this file, that he carefully looked at it, that he determined that this is the kind of case that requires a wiretap, that I found probable cause, I found that other needs, I apply my experience and my position as Assistant Attorney General and I make this important decision.

He represents this in the letter that wasn’t even signed by him.

As a result of that, a false application is made to the District Court.

The determination the District Judge makes to order the wiretap, to authorize it as based upon a false representation.

False information is incorporated into the Court order which the Judge signs in this file.

It causes the District Judge to make a false report to the Administrative Office that Wilson had authorized this tap.

It causes the Administrative Office to make a false report in its annual report which is subject to public scrutiny.

The entire scheme is false because this letter is not true.

Will Wilson was not designated to authorize the tap nor did he ever see the file.

Chief Justice Warren E. Burger: And if an application were presented to a District Judge Mr. Hewitt, which recited the correct facts, that is that this in detail, that this application was signed by Mr. Sol Lindenbaum on behalf of, note that Mr. Sol Lindenbaum acting for the Attorney General authorized Mr. Will Wilson to make this application.

Mr. James F. Hewitt: I don’t know --

Chief Justice Warren E. Burger: Do you think -- you think that would not comply with the statute?

Mr. James F. Hewitt: I don’t think so.

Chief Justice Warren E. Burger: And the District Judge might look at the statute and say, “You can’t do this with Mr. Lindenbaum, whoever he may be,” says the District Judge out in California.

Mr. James F. Hewitt: Yes.

Chief Justice Warren E. Burger: Now, on the other hand, if it correctly recited, this application was authorized by the Attorney General of the United States by his designation of Mr. Will Wilson, would you think the District Judge would be misled in the same way?

Mr. James F. Hewitt: If the --

Chief Justice Warren E. Burger: Or does not the greater authority of the Attorney General swallow the lesser authority of any Assistant Attorney General?

Mr. James F. Hewitt: No, and for this reason Your Honor.

Nowhere in this case does John Mitchell say that he ever saw this file, that he ever reviewed or he did more than authorize it.

Will Wilson says, “I have carefully reviewed the file.

I had exercised my discretion.

I make this finding, I make that finding, I’m satisfied.”

If Mr. Mitchell signed this letter saying, “I personally as Attorney General have reviewed this file and made these determinations then I think the District Judge must rely upon those determinations.”

But here, the District Judge rightfully and justifiably believed that these decisions were made by Will Wilson, the Assistant Attorney General who says he reviewed the file and made these important decisions.

And this is simply, I urge Your Honors, it isn’t simply the finding of probable cause indeed.

I think the prosecuted decision as to whether or not this is the type of case that justifies a wiretap is a very important one and I think the legislative scheme shows that there was not to be a rubber stamp, a blanket authority to tap any telephone.

Only those phones that the Attorney General or a responsible designated assistant finds to justify this intrusion maybe used and I think that’s one of the important decisions that the District Judge was misled on as to who might have made that decision.

Now, the government takes the position that that’s not a particularly important facet to the statutory scheme and I would submit to you Your Honors that it is very important.

That it's important in the sense that from the Congressional Record on August 11, 1969, Chairman McClellan summarized the first year of operation unto the Omnibus Crime Bill and he stated that apparently, and I call the Courts attention to page 23, 24-0, Chairman McClellan says apparently, “the prosecutor screening process is in fact having a healthy effect on the number of orders applied for and thus granted.

Indeed, it appears that a majority of the 167 applications that were approved for submission to the New York Courts were not approved in their original form.”

He states also, “I would suggest that the application should be more complete on their face.

Our thought was that mandating prosecutor involvement in the warrant process which strengthened it by guarantying that that decision to use these techniques would be preceded by a careful law enforcement screening process.

Apparently, this practice is being meaningfully followed in the majority of cases.”

He further states, “Prosecutors on whom the administration of the statute rests heavily should always carefully prepare and review these applications in light of the law.

What may have been permissible under old practice is not necessarily legal now.

I hope too that our judiciary even with crowded dockets is always taking the necessary time to examine and pass on all applications thoroughly.

The part they must play in scrutinizing and questioning these applications as well as requiring strict adherence to the statutory standards cannot be over emphasized.”

Justice Harry A. Blackmun: Have you cited that on your brief?

Mr. James F. Hewitt: No, I haven’t Your Honor, I found it just the other day.

Chief Justice Warren E. Burger: Could you make that available?

Mr. James F. Hewitt: Yes I will Your Honor.

I’ll file this as a supplement to the brief.

Chairman McClellan goes on, “I realize too that we’re dealing with a new reporting system as well as new legislation and I do not want to be overly critical.

I do however want to admonish every law enforcement officer, prosecutor and judge involved in this area that the only way this legislation will be effective in combating crime is by strict adherence to the standards it contains.”

And he further stated later that, “My purpose in making these remarks has been to help assure that this legislation will be in fact followed to the strictest letter of the law, both bringing criminals to book and protecting citizen’s privacy.

That is the only way in which it can be utilized as an efficient tool in reducing crime.”

He states as I’ve indicated, “my only concern at the moment is that the prosecutors in the Courts that has a responsibility under the statute would not become careless, but will remain firm in their determination to see that the statute is strictly followed.

If the statute is strictly followed, it is certainly not to be expected that any unnecessary invasion of privacy will result.”

I think this is the undercurrent -- that underlies this legislation is that there are these strict requirements.

These important decisions by prosecuting officers are an integral part of the scheme to set in motion a rather unique modern type of invasion of a citizen’s privacy.

So I would say Your Honors that if the decision of the prosecutor in this case, either the Attorney General or the Assistant Attorney General is important and the information concerning who made that decision is of equal crucial importance.

The Ninth Circuit in the decision in Chavez relied solely upon Section 28 -- 2518 which is the deficiency of the order, in effect holding that order that misidentifies the approving officer is the same as an order that would leave that information blank, and therefore, it would be defective on its face.

I would submit to Your Honors that if the decision of the Ninth Circuit in Chavez is affirmed, of course, that would take care of the Giordano matter as well, since not withstanding whether Mr. Lindenbaum was or was not authorized if the -- as the Ninth Circuit held in Chavez, if the order itself is defective and thereby vitiating the entire validity of the wiretap, then both Chavez and Giordano will fall accordingly and that would be our protective position with respect to the second prong, the Chavez prong of the argument.

Justice Potter Stewart: Were there pen registers involved in your case?

Mr. James F. Hewitt: Yes Your Honor.

Justice Potter Stewart: And do they require as I understand that all that they reveal is the numbers called from a particular phone?

Mr. James F. Hewitt: Yes Your Honor.

I think pen registers have been held not to be a --

Justice Potter Stewart: And not covered by the statute?

Mr. James F. Hewitt: That’s correct.

Justice Potter Stewart: That they are -- on the other hand that you needed the cover by the constitution in the Fourth Amendment, are they not?

Mr. James F. Hewitt: Yes Your Honor, I think the statutory scheme for pen registers is adequate in this particular case.

They were not the subject of the motion -- they were the subject to the motion of suppress in the District Court but were not before the Court of Appeals necessarily as an issue before the Court of Appeals.

Our -- the decision in Chavez parallels the District Court decision in Giordano under the name Focarelli (ph) where the District Judge in Giordano took the position that the orders itself were invalid and therefore the tap was initiated.

This reasoning was adopted in Chavez which was considered with the King case which applied the same reasoning as before the Court in Giordano in these pair of cases.

Chief Justice Warren E. Burger: I don’t recall now Mr. Hewitt too clearly, did Judge Duniway of the -- for the Ninth Circuit would rely on both 1 and 2 of Section 10?

Justice Byron R. White: Did he rely on a confirmation?

Mr. James F. Hewitt: It’s a little unclear.

Justice Byron R. White: 2515 and --

Chief Justice Warren E. Burger: And 2518?

Mr. James F. Hewitt: Yes, and --

Chief Justice Warren E. Burger: But I’m talking now about the subdivisions of --

Justice William O. Douglas: 1, 2 and 3?

Chief Justice Warren E. Burger: 1, 2 and 3 that the communication was unlawfully intercepted.

Judge Sobeloff did not track the District Judge’s inclusions in this respect, that is he put them, this is on number 2 as I recall.

Mr. James F. Hewitt: Yes.

Chief Justice Warren E. Burger: And I’m just wondering, did Judge Duniway have a bracket to whole area?

Mr. James F. Hewitt: No, I think Judge Duniway was considering that probably it applied to both --

Justice Byron R. White: Both unlawful.

Mr. James F. Hewitt: -- both unlawfully intercepted and perhaps --

Chief Justice Warren E. Burger: And --

Mr. James F. Hewitt: -- valid on its face.

Chief Justice Warren E. Burger: 1 and 2.

Mr. James F. Hewitt: Two.

I would disagree with my co-counsel or associate, Mr. Smouse to one extent.

I think perhaps if the Court were to find that the statute was not broad enough to cover this, certainly there would be an inherent power on the part of this Court to remedy this by fashioning a supervisory rule.

I think even though not -- even though there’s no constitutional point involved, I would see no prohibition on this Court in excluding this evidence on the basis that there must be some sanction for failure to comply with the strict statutory requirements.

Chief Justice Warren E. Burger: Well, assuming hypothetically that 2518 (10) (a) (1), (2) and (3) did not by implication cover this; certainly, Section 2515 is explicit, is it not?

Mr. James F. Hewitt: Yes, it is Your Honor.

And I would point out that the legislative history indicates that it was the intent that 2518 (10) are pretty much set forth those grounds upon which traditional search and seizure concepts have led to the suppression of evidence and here in a situation like this, a search warrant affidavit that had this same defects, a misidentification of the affiant certainly if the Court has the inherent power to suppress that, the same rationale should apply to the orders and the application [Voice Overlap]

Justice Potter Stewart: To suppress what, if the Court has the power?

Mr. James F. Hewitt: A search warrant affidavit that misidentifies the affiant.

The case is cited in our brief.

Justice Potter Stewart: Well, you -- but you're suggesting that some kind of a McNabb-Mallory --

Mr. James F. Hewitt: Yes Your Honor, some type of supervisory rule that would -- that would get the -- some sanction for non-compliance.

Justice Potter Stewart: Even if we find its -- this isn’t covered by the statute?

Mr. James F. Hewitt: Yes, I think the statute covers it, but I’m not sure that that would be crucial to uphold the Ninth Circuit's decision.

They were not that clear as to the rationale for the suppression, but certainly I think it's implicit and Judge Duniway’s opinion that this type of conduct is in conflict with the legislative history and certainly in conflict with the clear statutory language and there must be some sanction for its violation.

Justice William H. Rehnquist: Do you think your case is stronger or weaker on respect to a judge made exclusionary rule in a situation like this where Congress has laid down statutory qualifications and then itself provided the circumstances under which there should be suppression or in a case like McNabb where simply Congress has enacted a statutory prohibition, has said nothing about suppression.

Are the judges freer in one case than the other?

Mr. James F. Hewitt: I think the judges would be freer in this case because they can interpret the statute unlawfully intercepted in a broad fashion to include those same traditional defects that the Court would consider defect -- consider controlling in a typical search and seizure.

Justice William H. Rehnquist: Well, then there really wouldn’t be any of our supervisory power, or just be a statutory interpretation.

Mr. James F. Hewitt: Yes Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Kahn - Oral Argument

Thu, 23 Aug 2012 18:23:56 +0000

Case:

United States v. Kahn

Related Transcript:

72-1328_19731212-argument

Transcript:

Argument of Frey

Chief Justice Warren E. Burger: Mr. Frey, I think you have about 15 minutes remaining.

You may proceed.

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

I think I was about to start yesterday with the discussion of Judge Campbell’s order authorizing the wire interception in this case.

The Court of Appeals read the order as though it was limited until the interception of conversations of Irving Kahn with persons unknown, that is, only conversations between Irving and persons unknown.

In fact, the order read conversations of Irving Kahn and others as yet unknown.

We submit that it’s clear as Judge Stevens indicated in his dissent that that would authorize the interception of all the conversations that are in issue in this case.

Chief Justice Warren E. Burger: I take it, you mean by that that if some sort of meeting were held in his home, in Kahn’s home, and other members of the organization handling it were present, their use of the phone would be covered by this authorization?

Mr. Frey: Yes, certainly.

Any conversations over those phones relating to the gambling offenses would be covered by the order.

This is a standard form of language that wire interception orders almost routinely, contained where there’s not any special restriction that’s intended to be imposed on the scope of the reception.

Chief Justice Warren E. Burger: Would you think the warrant where the authorization would be adequate if there were persons then known to the Government who were working as part of this group with Kahn and, yet, not identified in the warrant but if they came to his house and used his phone?

Mr. Frey: Well, let me begin by saying that, as a constitutional matter, I think there is no requirement of identifying the person so long as the conversation so identified was sufficient particularity.

Now, Justice White was touching on this question yesterday whether, as a statutory matter, Congress intended some sanction or suppression to result from such a laps on the Government’s part.

Now, I think that the consequence of saying that after the interception has been completed and the prosecution is broad, and these are frequently, highly complex prosecutions with numerous defendants involving a far-reaching conspiracy, the Government should not be put to the proof of showing with respect to every conversation that it did in some way or somehow, have a probable cause that somebody could dredge up on the basis of which they might have anticipated intercepting the conversations of some individual.

So, I think it would be our position that as long as you name the primary target of the investigation whose zone of privacy you’re expecting to intrude upon which, in this case, would be Irving Kahn and his household telephone.

That that should suffice and that, then all unlawful conversations over the phone can be intercepted.

Now, the statute is quite clear and the Court of Appeals, in referring to the statute, did not fully quote it in discussing this “if known” problem.

Section 2518 (1) provides that the order of the application for the wire interception order shall contain certain information.

In Subsection (b) (iv), it requires -- the Government indicates “the identity of the person, if known, committing the offense and whose conversations are to be intercepted.”

Now, two things emerge from this provision with, we submit, indisputable clarity.

The first is that it concerns persons if known to be committing the offense, and not just persons who are known in some other broader or vaguer sense.

The second is that the statute contemplates circumstances in which no one may be known and, therefore, no one need be named yet, nevertheless, the Government may apply for and obtain from a judge an order authorizing a wire interception.

That might be the case, say, if you had a cigar store or a pool hall where you knew gambling or drug business was being conducted over telephone but you did not know the identities of people.

Justice Potter Stewart: You say that’s by negative implication?

Mr. Frey: I would say, yes.

Justice Potter Stewart: From (4) (a)?

Mr. Frey: Yes.

Justice Potter Stewart: The “if known” contains a negative implication that if --

Mr. Frey: If no one is known, no one need be named.

Justice Potter Stewart: If no one is known, it’s still permissible?

Mr. Frey: Yes, I think it is.

Justice Potter Stewart: You have to get there by negative implication, don’t you?

Mr. Frey: Well, we begin with there being no constitutional requirement for this identification and then we look to see whether the statute has imposed requirements.

In addition to those, there would be required for a conventional search warrant and the requirement should be read, at most, to require what it specifically says.

Unknown Speaker: Well, Mr. Frey, the -- is there any significance in the omission of committing the offense?

Mr. Frey: In Subsection --

Unknown Speaker: From --

Mr. Frey: Subsection (iv)?

Unknown Speaker: Yes, from Subsection (iv) where the distinction is between Roman numeral four and b.

Mr. Frey: We believe that that cannot be read to have any significance because the only source of information for the judge’s order which that subsection deals with is the application that’s been submitted to him.

If we’re not required to identify the application other known persons whose conversations may be intercepted, then --

Unknown Speaker: Well, then you’re suggesting that we also be read into Arabic four.

What’s in Roman four, committing the offense?

Mr. Frey: Yes, we would suggest that and we see, it seems to us, logically inescapable to do that.

Now, one of the underlying concerns, I think, in the case of this sort is the difficulty of the possibility that conversations --

Unknown Speaker: Excuse me, Mr. Frey, is there any --

Mr. Frey: Excuse me.

Unknown Speaker: Legislative history that might explain the omission --

Mr. Frey: The legislative history on this is very, very limited.

These provisions, the “if known” provisions were not in the original Bill.

They were in Professor Blakey’s version and he was counsel to the committee, and as the Bill emerged from the committee, it contained the “if known” provisions.

Unknown Speaker: Just as they are now?

Mr. Frey: As they are now and there was an explanation which was the typical recitation of what they provide with, aside to a case called West against Cabell, which dealt with arrest warrants and not with search warrants and -- which is a little difficult to understand why it was even referred to.

Now, there is a legitimate concern with the problem of intercepting innocent conversations and conversations of innocent persons who may be in the household or who otherwise may be calling in or out from the intercepted telephones.

But I think it’s clear that Congress anticipated that this was inevitable and that indeed, any wire interception must necessarily entail some limited degree of interception of innocent persons or innocent conversations.

I’d like to give some examples of some typical conversations which I think will make this clear.

First of all, we have -- the phone rings and, let’s say, Mrs. Kahn picks up the phone and says “hello.”

Now, at this point, the question is should the people monitoring simply turn the recording off right away because it’s not Irving Kahn.

Well, I think the answer to that is quite clear because the next -- and the answer is, clearly, no.

They can’t turn it off at that point because the next words may be “Is Irving at home?”

“Yes, I’ll put him right on the phone.”

Now, if they can listen past the hello, past the time that Minnie Kahn gets on the phone, the next question may be or the next statement may be “I’d like to bet $500 on the Bears.

What’s the spread?” and she may say “Well, it’s 5 points, but you owe us $1,000 and we can’t take any more bets from you.”

Well, since they have to be allowed to hear this far into the conversation, once this has been monitored, lawfully monitored, there’s no policy either constitutional or statutory that could possibly be served by saying “well, they heard it but they can’t use it in evidence.

They can’t use it to prove the offense because they didn’t name Minnie in the order.”

Chief Justice Warren E. Burger: Suppose, Mr. Frey, that the person who answered the phone is not Mrs. Kahn and totally and truly unknown at that time when it is recorded on the tape.

And later, by some extraneous evidence, some independent evidence, they are able to link that conversation, perhaps through the other party, and identify the speaker.

You -- I take it, you’d think that telephone conversation would be admissible in evidence then?

Mr. Frey: I think there’s no doubt of that and, with the exception of this court, every court has held that where the name target as one of the parties to the conversation, that conversation can be intercepted.

Chief Justice Warren E. Burger: By “this court” you mean the Seventh Circuit?

Mr. Frey: The Seventh Circuit, I beg your pardon, yes.

Here, we have two categories of conversations: the conversations between Irving and Minnie as to which I can’t understand any basis for excluding those so long as they deal with the illegal gambling enterprise.

Since Irving was named in the order, he was a person whose zone of privacy was being lawfully invaded pursuant to this warrant.

He did conduct conversations about the gambling enterprise.

I could see no basis for suppressing those.

Now, similarly, with respect to the conversations between Minnie and third parties where she was transmitting gambling information or taking bets in violation of state law thereto.

They were properly on the phone.

They properly heard these conversations, and they had to.

As you can see from the examples that I’ve cited, I think there’s no basis than in a justification, no policy reasons for excluding them.

Now, I see my time is running short.

I think that I’d just like to make one or two more comments and then save the balance of my time.

The Court of Appeals suggested that somehow the Government should have conducted a further investigation of Mrs. Kahn which they thought might have disclosed her complicity in the illegal enterprise.

We suggest, and we’ve argued this at some length in our brief, that this does not serve Mrs. Kahn’s privacy interest.

It does not serve any privacy interest that the Fourth Amendment is designed to protect.

Since whether or not the investigation disclosed her complicity, the interception of her conversations could still take place.

Finally, on the standing point which we also advert to in the last section of our brief, I’d simply like to cite Alderman, footnote 9, in Justice White’s opinion in Alderman.

There is a discussion of the standing problem and there is a reference to the legislative history which is at page 91 of the Senate Report 1097.

And it was quite clear there that the normal Fourth Amendment constitutional standing rule was intended to be adopted in these wire interception cases and, under that rule, we think it’s clear here that any defect that may have existed was purely personal to Minnie Kahn, and Irving Kahn should have no standing to raise the issue.

If there are no questions at this time, I’d like to reserve the balance of my time.

Chief Justice Warren E. Burger: MFine.

Ms. Lavin.

Argument of Anna R. Lavin

Ms Anna R. Lavin: Mr. Chief Justice and may it please the Court.

I don’t know that I entirely understood the latter part of counsel’s argument relative to standing.

The statute itself provides standing for any person aggrieved.

And I think that is conclusive on who has standing.

Along with that, I would like to contest partly what the Government has stated that this Title III case does not involve.

It does here, contrary to what he said, have a minimization issue.

That was not ruled on in the court below as not necessary, perhaps it was somewhat ruled upon by virtue of this case.

The sufficiency of the affidavit and the application are not finally settled.

It also has an issue of proper or improper authorization.

In that regard, the Government indicated that we have all the normal papers.

We have got none of the affidavits to determine if this was one of the so-called now Lindenbaum cases.

This case was decided in the District Court in November of 1971.

The leading Robinson case referring to the Lindenbaum case affidavits was some six months later.

So, those are battles that we have yet to fight and I make reference to this only because the Government has indicated that we got all the customary papers.

Again, and this might have been a misstatement, he said that the indictment had been dismissed.

On the contrary, that evidence has been suppressed but the indictment continues to be viable.

The trial court merely suppressed the evidence that Minnie Kahn had on her about March 21, 1970 and, particularly some conversations she had with Irving Kahn on that date.

He was in Arizona.

She was in Skokie, Illinois.

This was at the trial court level, suppressed principally upon the husband and wife privilege.

Secondly, it was suppressed on the ground that Minnie, though a known person, was not named in the authorization order.

Particularly, the trial court found, and this is at page 52 of the appendix in the Court of Appeals.

Any conversations exclusively between the defendant Irving Kahn and his wife Minnie Kahn a privilege of communications and, thereby, suppressed.

The motion of the defendant Minnie Kahn to suppress her intercepted conversations is granted as they were not authorized by Judge Campbell’s order.

The motion the defendant Irving Kahn to suppress intercepted conversations to or from his home is also granted to the extent that he did not personally participate in such conversations.

Now, these three are the basis of the Government’s appeal from the trial court.

Now, we would refer the Court to the decision of the Court of Appeals.

There, we had three separate decisions. The majority holding that the non-Irving communications were not authorized.

One judge agreed with the trial court that the Minnie-Irving conversations were privileged and recognized as such by the statute as privileged and should’ve been excluded.

Neither the tapes nor the report that was delivered to the trial court was any part of this record, I meant to the authorizing court, was any part of the record at the trial court level nor at the Court of Appeals level.

Mr. Justice Stewart asked yesterday about that.

The answer to your question is the report about which you asked was filed in this Court for the first time.

There is nothing in the record to even suggest the content of the marital conversations.

Now, in this posture and with due recognition that this is, I believe, the first Title III case before this Court, we have the further recognition that will be followed by more sophisticated arguments on Title III.

We do see in this case a basic constitutional issue.

If, as the Government urges, we were to equate Title III conversations with the Fourteenth Amendment -- the Fourth Amendment, this Court has to decide whether a conversation is the equivalent of a place to be searched or whether those conversations are an incident or an element of the person.

The Government’s argument tends to ask you to equate a telephone with the premises to be searched.

We submit, on the other hand, that a telephone conversation is the property of the person, not of the phone, of the person whose thoughts, whose ideas, whose reactions are reflected by that conversation.

We submit that a telephone is not a premises.

It’s not an enclave.

It’s not a cartilage.

The phone retains no property.

It’s only the wiretap that retains the personal utterances.

In that respect, we think there’s also a quality of the Fifth Amendment in this case because the goal of the wiretap is the securing of incriminating statements of persons names in the order.

They don’t listen for innocent conversations and accidentally come across evidence or instrumentalities of crime.

Chief Justice Warren E. Burger: What would you have to say about the question I put to Mr. Frey?

If -- let’s change it a little bit. Suppose Mr. Kahn hired one of the people who were in his organization to come and work at his house, someone not named in the authorization or the order.

And his conversations with people placing bets are overheard, admissible or not admissible?

Ms Anna R. Lavin: Not admissible.

Chief Justice Warren E. Burger: And why?

Ms Anna R. Lavin: Our position is that this would take us, of course, to the application and to the affidavit which we reach later.

And that is that Mr. Kahn, at the time of this conversation, was off the premises.

Now, let us assume he’s on the premises and someone else takes over the phone, and enough is heard accidentally in that case to determine that someone else is now involved with him in the gambling operation.

But under the circumstances in this case where he was not on the premises, then the information secured would not be admissible because it had not been pursuant to the order nor had it been -- nor had any order been obtained on probable cause.

But we have to look at that in the posture of this case.

The La Gorga case that the Government adverts to is, I think, fairly applicable here.

In that case, two of the principals were known to visit a certain health club.

An order issued and it said you may listen in on the phone at the health club, but you may only listen when one or both of the known persons are on the premises and when one or the other of the known person is involved in the conversation.

In other words, I think the important distinction here is Mr. Kahn’s being off the premises.

If I may just finish up the thought, I suggest that this is an invasion of the person, I would also suggest that Congress understood this to be an invasion of the person when it specifically excluded any privileged conversations.

Now, of course, privileged conversations do not refer to premises.

They refer only to people.

Now, I would like to go, if the Court please, to persons unknown and whether Minnie Kahn can be brought within the shelter of persons unknown.

I want to refer you first, if I may, to the affidavit which is found at Page 9 of the Appendix before this Court.

At 3 (a), they state this.

“There is probable cause for a belief that Irving Kahn and Jake Jacobs have been and are now committing an offense involving the use of telephone communication facilities in interstate commerce with intent to carry on the offensive waitering (ph) on sports events in violation of Illinois law.”

Then on the next page, the affidavit says, “There’s probable cause to believe the telephone numbers and the numbers at the Kahn residence and telephone numbers at the Jacob’s residence are being used and will be used in carrying out the offenses of paragraph 3 (a)", which I just read.

The affidavit continues, in effect, finding how this operation is run by Kahn and how it is run by Jacobs.

No one else is adverted to as being a part of this operation.

The only persons who are referred to thereafter are bettors and linesman.

I don’t mean linesman in the sense of football.

So eventually, without another word being said about parties unknown, we come to the last paragraph on Page 20 where the request is made.

It is requested, this intercept not terminate etcetera, to reveal the manner in which Irving Kahn, Jake Jacobs, and others yet unknown participate in the illegal use of interstate telephone facilities.

Justice Potter Stewart: Where were you reading from?

Just now you said --

Ms Anna R. Lavin: That, sir, is from Page 20.

Justice Potter Stewart: 20 of the Appendix?

Ms Anna R. Lavin: Down at the -- starting at the bottom of 19 onto 20.

The only persons who could fit into that description, I submit, are the bettors and the linesman who were adverted to in the earlier part of the affidavit.

Now, I think the Government --

Chief Justice Warren E. Burger: You’ve gone a little too fast for me there.

Ms Anna R. Lavin: Yes, sir.

Chief Justice Warren E. Burger: At the top of page 20, are you telling us that the words “and others as yet unknown participate in the illegal use of the interstate facilities,” and so forth, excludes anyone in the Kahn house?

Ms Anna R. Lavin: Nobody is mentioned in the entire affidavit from the Kahn house.

The only persons --

Chief Justice Warren E. Burger: Mr. Kahn is mentioned, isn’t he?

Ms Anna R. Lavin: Mr. Kahn, yes, he’s mentioned.

Chief Justice Warren E. Burger: It’s his house and his telephone.

Ms Anna R. Lavin: That’s right.

Chief Justice Warren E. Burger: And the allegations are, in the affidavit, that he’s the man who’s conducting this illegal enterprise.

Ms Anna R. Lavin: That’s right.

Chief Justice Warren E. Burger: And then there’s the blanket phrase and all other persons unknown.

And of course that assumes, in part at least, that a great many people impossible then to be identified are going to be calling in.

Ms Anna R. Lavin: Calling in, that’s right.

Chief Justice Warren E. Burger: These are the bettors.

Ms Anna R. Lavin: The bettors.

Chief Justice Warren E. Burger: Do you say it excludes his confederates in the conspiracy if they call in to talk about the details?

Ms Anna R. Lavin: Oh! No, I do not.

No, I certainly don’t mean if his confederates in the conspiracy called in that they would be excluded, but --

Chief Justice Warren E. Burger: And do you say it excludes his helpers who come to his house to answer the phone?

Ms Anna R. Lavin: And I say if he’s on the premises and they pick up a call of that nature, that is a -- shows itself to be a part of this conspiracy, that would be permissible.

Chief Justice Warren E. Burger: The evidence would be admissible?

Ms Anna R. Lavin: Yes, sir.

Chief Justice Warren E. Burger: But not Mrs. Kahn?

Ms Anna R. Lavin: Not Mrs. Kahn on the posture of this case.

Chief Justice Warren E. Burger: How do you distinguish Mrs. Kahn from one of his other helpers?

Ms Anna R. Lavin: Well, I think we can do that from the record knowing, of course, and starting with the predicate that not one word was said about Mrs. Kahn in any of the affidavits.

The Government recognized in its argument the elimination of Mrs. Kahn from any probable cause.

It then argues in this fashion, and this is at Page 26 of its brief in chief.

Since Mr. Kahn could hardly be assumed to be invariably at home and available, someone would be expecting on occasion to receive calls relating to the business on his telephones.

But that is belied by the Appendix which states at Page 11, first paragraph, “Kahn’s bettors contact either Kahn or Jacobs and place their bets.

When Kahn is out of town and/or vacationing, all bettors with call Jacobs, and vice versa.”

Justice Thurgood Marshall: I understand the Government’s position to be that they knew Mrs. Kahn was there.

They were aware that there was a Mrs. Kahn, but they were not aware that she was in this syndicate.

Ms Anna R. Lavin: That is the Government’s position and --

Justice Thurgood Marshall: Now, what’s wrong with that position?

Ms Anna R. Lavin: Well, we submit to the Court that it does not satisfy the statute.

That it’s a contortion or a distortion of the words on the requirements for the securing of an order.

The statute --

Chief Justice Warren E. Burger: You mean the unknown --

Justice Thurgood Marshall: Are you saying that the order would have to include the wife and all of the children?

So if there was a family with 16 children, it would have to include all of them?

Ms Anna R. Lavin: No, sir, but by exclusion it’s indicated that there’s no probable grounds or probable cause to listen into their private conversations.

Justice Thurgood Marshall: I know, probably --

Ms Anna R. Lavin: Well, Your Honor, the --

Justice Thurgood Marshall: Just the word “unknown,” sure she’s known.

Anybody could know all that just by picking up a telephone book.

Ms Anna R. Lavin: And the argument of the Government is the identity of the person, if known, whose communications are to be intercepted as the statute reads.

Justice Thurgood Marshall: The Government assumed that what she’d be talking over the phone would be ordering food, and she doesn’t --

Ms Anna R. Lavin: Yes.

Justice Thurgood Marshall: But all along, they found out it was unknown.

But they didn’t know that when they had gotten this indictment.

Ms Anna R. Lavin: When they got the order, they did --

Justice Thurgood Marshall: I mean the -- I meant the search warrant.

Ms Anna R. Lavin: But should they have been listening to her ordering meat, I submit that they should not have and --

Justice Thurgood Marshall: Well, I thought that the order said that.

The order said you should not listen to other matters.

Ms Anna R. Lavin: That’s right.

Justice Thurgood Marshall: So, when the order was issued, she wasn’t affected at all, was she?

Unless --

Ms Anna R. Lavin: That’s right, she wasn’t.

Justice Thurgood Marshall: Unless she was in the conspiracy.

Ms Anna R. Lavin: It appears that she was handling some gambling business.

That’s right, but they had no basis for listening to her.

The Government argues that this should be excused.

I submit that it should not.

But they say it should be excuse because they can get one of these orders without naming anybody.

Well, that means that they don’t know anybody to name.

I think the wording of the five requirements is beyond question.

You can’t say “the name of the person, if known.”

They don’t say “the name of the person, if known, could be in the gambling business.”

They say “the name of the person, if known,” and I suggest that it’s a distortion of the plain words of the statute to amend it to say “you have to name the person if you know.

Only, you don’t have to name him if you don’t know if he’s in the business.”

The requirements of that statute, both the name of the person, if known, and the four other requirements are mandatory conditions.

They are set forth in the statute, we think, to meet the precision and discrimination discussed by this Court in Katz, where this Court said that, under sufficiently precise and discriminate circumstances, a Federal Court may empower government agents to employ a concealed electronic device for the narrow and particularized purpose of ascertaining the truth of the allegations of a detailed factual affidavit alleging the commission of a particular offense.

If any of those requirements are omitted, the warrant itself loses, or rather the order itself loses precision and the discrimination that is required by this Court under Katz.

Also, you don’t have the other requirement of Katz, the narrow and particularized purpose, nor are you looking here for the truth of the allegations as to whether or not Katz is running a betting operation on his premises.

This listening indiscriminately to the conversations of the children and of the wife would not lead to the end that is indicated as the purpose under the Katz case.

The Government, in its argument, in its brief -- both the brief and in its argument here, relies in great measure on the “plain view” doctrine that this Court discussed in the Coolidge case.

As that court found -- as this Court found in that case, it said that the doctrine was not applicable to a search of a particular Pontiac automobile which stood plainly in the driveway.

We suggest that should also apply here where the search centered on Minnie Kahn, and Minnie Kahn and their two children were known occupants of the premises.

In Coolidge, you said the “plain view” doctrine may not be used to extend the general exploratory search from one object to another until something incriminating at last emerges.

Well, we submit to the Court that if you can’t extend from one object to another, then we don’t think you can extend from Irving Kahn to Minnie Kahn.

I also would take up with the Court the matter of notice.

In our fourth point in our brief, we complained about the secrecy of these court-authorized interception proceedings.

Most particularly, we complained about having no access to files to determine in this case whether a notice in inventory was served on Minnie Kahn which we think would’ve been a recognition that Minnie Kahn was within the scope of the authorizing letter.

The Government says that Minnie wasn’t mentioned in the order and, therefore, notice in inventory need only be served upon her in the court’s discretion.

We take that, of course, to admit that Minnie didn’t in fact get any notice even though it was her conversations principally, not Irving’s, on that phone that the Government intends to use to prove the case here.

And even thought the Government ask this Court to unsuppress that evidence, it seems to us that this is kind of a “later day” explanation that a known person, though not known to be in a gambling business, was definitely to a person to whom this notice was required.

The Government excuses this in a way.

It says Minnie Kahn received a notice sent to Irving.

Now, that’s a little off the record, but I’m willing to assume the validity of that representation.

All the cases of which we are aware indicate that this notice is made by a registered mail and, for the purpose of this we will assume that Minnie received the mail.

But the Government asks the Court further to assume, first, that Minnie opened the mail or that Irving is presumed to have told Minnie what was in the letter from the Government.

I think that’s untenable that while wives do not invariably open husband’s mail and husbands do not tell wives they’re having trouble with the Government until they’re forced to do it.

The Ianella case on which the Government relies has no force here.

In that case, the other persons were actually unknown persons, unknown at the time they put in the wiretap.

This person using the phone to the exclusion of the named person.

We would then refer the court to the Third Circuit Eastman case at 465 F. 2d.

There, a suppression order issued and it was affirmed for failure to give the statutory notice.

In that case, they relied principally in this Court’s decision in Berger which cast down a New York eavesdropping statute for failure to provide for the giving of notice.

In this case, though the bulk of the conversations were Minnie’s, the Government would have us read this statute that notice need not be given to Minnie from whom the property was taken.

We suggest to the Court that that does not equate with the Fourth Amendment even if it does equate with the literal reading of 2518 (8) (d).

If that Section can be so narrowly construed, like a person from whom the telephone calls were taken need not be given notice, then it doesn’t meet the requirements of this court’s decision in Berger and, under such a construction, we would submit that the statute is unconstitutional.

I see that my time is going and I would just like to refer the Court to the Government cited case, the United States versus La Gorga at 365 F. 2d or rather F. 7h.

It gives us a background against which the legislature intended Title III to be considered.

And in speaking of the privacy insured by the Fourth Amendment, it said that privacy can be breached by a search warrant under conditions set out in the amendment.

Factually, the wiretapping permitted by the Omnibus Crime Control Act is severely limited and the Act actually prohibits far more wiretapping than it permits.

I submit then to the Court, in closing, that wiretapping and any expansion on the order should be given a negative rather than a positive reception and should be countenanced only in circumstances that clearly warranted, and this is not such a case.

We urge the Court to affirm the decision of the Seventh Circuit.

Chief Justice Warren E. Burger: Mr. Frey, do you have anything further?

Rebuttal of Frey

Mr. Frey: A few things, Mr. Chief Justice.

First of all, of course, I’d like to point out that there’s no Fifth Amendment problem in this case since there was no compelled statement or testimony of any sort.

Secondly, with respect to the La Gorga case, the Health Club case that counsel adverted to, public phones, phones in public places are different from phones in a private home.

Katz case involved a public phone.

There was, indeed, an amendment proposed to Congress to this Bill and which was recommended by the Justice Department but which was never voted on or adopted which, in the case of public phones, would’ve permitted only the interception of conversations of the named party.

For obvious reasons, you would have no basis for expecting to receive any information relating to your investigation from conversations on a public phone except by those of the named party.

That is not at all true in this situation where you’re intercepting conversations over a private phone.

Frequently, in these cases, there are organized crime cases; you’re dealing with sophisticated conspiracies.

It’s not uncommon particularly in narcotics cases to have two quite innocent people start a conversation and then, in the middle of the conversation, all of a sudden you have two completely different people who are on the phone talking in code about narcotics transactions.

In this case, indeed, some of the conversations were in Yiddish between Irving and Minnie Kahn.

With respect to what’s in the record and what isn’t in the record that is a little confusing.

The record in the wire interception authorization proceeding, which is technically a civil proceeding, was sealed and it did go up to the Court of Appeals, and technically, the tapes of the recordings were part of the record.

In fact, I think neither the District Court nor the Court of Appeals listened to any of the conversations or relied upon the content of any of the conversations, the specific content, in reaching its decisions.

Now, the notice issue which counsel discussed is, of course, not before this Court or was not involved in the grant of certiorari.

Moreover, it’s clear that the District Court has discretion to require notice, service of the inventory notice, except to the named party.

Here, the named party was Irving Kahn.

He received service of the notice.

There was no defect in that regard.

And finally, with respect to the standing point, it is true that the statute defines a person aggrieved quite broadly for standing purposes.

But we’ve indicated in our brief our position, we think this is supported by the discussion in Alderman, that the target of the interception, the person whose phone is being intercepted is conferred broad standing for the purpose of challenging the legality of the entry onto his telephone line just as the home owner is conferred broad standing for the purpose of challenging the entry into his house.

If something illegal inside his house or on the line is found but only affects another person, he should not be granted standing to challenge it.

Therefore, we submit that the judgment of the Court of Appeals should be reversed.

Chief Justice Warren E. Burger: Thank you, Mr. Frey.

Thank you, Ms. Lavin.

The case is submitted.

Featured:

United States v. Kahn - Oral Argument, Part 1

Tue, 03 Feb 2009 02:40:23 +0000

Case:

United States v. Kahn

Media File:

72-1328_19731211-argument-1.mp3

Featured:

United States v. Kahn - Oral Argument, Part 2

Tue, 03 Feb 2009 02:40:25 +0000

Case:

United States v. Kahn

Media File:

72-1328_19731212-argument-2.mp3

Featured:

United States v. Biswell - Oral Argument

Thu, 23 Aug 2012 18:23:20 +0000

Case:

United States v. Biswell

Media File:

71-81_19720328-argument.mp3

Related Transcript:

71-81_19720328-argument

Transcript:

Argument of R. Kent Greenawalt

Chief Justice Warren E. Burger: We’ll hear first in No. 71-81, United States against Biswell.

Mr. Greenawalt you may proceed whenever you’re ready.

Mr. R. Kent Greenawalt: Mr. Chief Justice and may it please the Court.

This case is on review of the decision of the Court of Appeals for the Tenth Circuit that an agent of the Alcohol, Tobacco, and Firearms Division of the Treasury Department searched respondent Biswell’s business premises in violation of the Fourth Amendment.

The issue involved is a narrow one.

Whether Congress in regulating the distribution of firearms, may authorize treasury agents to make routine inspections during business hours of the business premises of licensed dealers in firearms and whether Congress may impost upon these licensed dealers a duty to admit the agents even though the agents do not possess a warrant.

Putting the question somewhat differently, thus the congressional authorization of such inspections and the imposition of a duty upon licensed dealers to admit the agents without warrants conflict with the Fourth Amendment.

We believe the constitutionality of the authorization and the duty Congress has imposed is plain under Colonnade Catering Corporation versus United States and that therefore the court below erred.

The relevant facts in this case are quite straight forward.

Loarn Anthony Biswell is a pawnbroker in Hobbs, New Mexico.

A substantial number of the items pawned with him as security for loans are firearms.

At the time of the inspection here he held some 444 firearms.

Biswell was a licensed dealer of firearms.

Under Section 923 of Title 18, dealers and firearms must be licensed and dealers who are explicitly defined to include pawnbrokers.

Special Investigator Hupp of the Alcohol, Tobacco and Firearms Division made a routine compliance visit to Biswell’s pawnshop.

According to Hupp, such visits of dealers are made about once a year.

Hupp identified himself and first inquired about Biswell’s records.

He ascertained that Biswell was not keeping records in the form required of all firearms dealers.

Hupp then indicated that he wish to see the storerooms where the firearms were kept.

Biswell kept these along with other pawned items in a locked storage room.

Biswell inquired if Hupp got a search warrant and Hupp said no but he showed Biswell a copy of the statute authorizing treasury agents to search the business premises of firearms dealers without warrants.

At that point, Biswell said, well, that’s what it says so I guess it is okay and he unlocked the storeroom.

Inside the storeroom, Hupp saw a rifle with an 11 and 3 quarter inch barrel.

Any rifle with a barrel of less than 16 inches is an illegal firearm under the National Firearms Act of 1968.

That Act does not absolutely forbid possession of such firearms but sharply constricts a rightful possession and commerce in such firearms.

Each set of firearm must have serial number, each dealer in such firearms must pay a special occupational tax and be specially registered with the Secretary of the Treasury and whenever any such firearm is transferred, the transferor must pay a $200.00 transfer tax and obtain approval of the Secretary of the Treasury.

It was clear to Agent Hupp that Biswell did not legally possess the sort of rifle he saw.

There was no required serial number on the rifle.

Biswell indicated that he had no idea such weapons had to be specially registered.

Finally, it was obvious that no owner would pay transfer tax of $200.00 to get a $3.00 loan although of course Hupp didn’t know the amount of the loan but he knew it was much less than $200.00 from a pawnbroker.

Soon after seeing this rifle, Hupp noticed another with a short barrel and he seize both rifles.

The District Judge denied a motion to suppress the two sort of rifles and they were introduced at Biswell’s trial.

They in the observations of them by Agent Hupp irrelevant to the count for which Biswell was convicted, engaging as a dealer on illegal firearms without having paid this special occupational tax.

Among other claims on appeal, Biswell asserted that the search leading to the seizure of the rifles was unconstitutional.

The Court of Appeals agreed that the search was unconstitutional and that the evidence should’ve been suppressed and it reversed the conviction.

I think it may be useful that the outset to put aside what is not involved in this case.

There is no assertion by Biswell that Hupp performed other than routine actions under the statute.

It is not disputed that he was engaged in the periodic compliance visit.

It is not disputed that such visits typically involved inspection of the firearms on the premises and if the entry into the storeroom was valid, the appropriateness of the seizure of the two clearly contraband weapons is not challenged.

At the same time it is clear that Biswell unlocked the door of the storeroom because he acquiesced in an apparent show of the lawful authority.

In an ordinary criminal investigation, his action would not of constituted consent to an otherwise unauthorize search.

Thus, we do not argue that this search was consented to in the ordinary sense of consent.

The case thus presents very clearly, the power of Congress to authorize treasury agents responsible for enforcement of the firearms laws to authorize those agents to inspect the business premises of firearms dealers without warrants.

Both the Criminal Code and the Internal Revenue Code contain a multiplicity of regulations governing the sale and distribution of firearms.

I take it there can be no question of the importance of close regulation of the gun industry.

Approximately 60% of the murders in the country by use of firearms as are 95% of the killings of police officers on duty.

The power of Congress to require licenses in registration and to tax this incidence of the gun industry has been consistently upheld.

That power is not questioned in this case.

As a central aspect of the regulatory scheme, Section 923 (g) of Title 18 provides for inspection.

The relevant language for this case is “The Secretary may enter during business hours the premises including places of storage of any firearms or ammunition dealer for the purpose of inspecting any firearms or ammunition kept or stored by such dealer at such premises.”

The clear import of this section is the treasury agents need not have a warrant to inspect and that licensed dealers have a duty under the statute to permit inspection.

This Section is virtually identical with the Section considered by this Court in Colonnade Catering Corporation versus United States.

In Colonnade, this Court held with three dissents that Congress had not authorized entry by physical force without a warrant.

The significance of that case for this one however, is in the Court’s reasoning.

The Court acknowledged that treasury agents have been given broad authority to enter and inspect the premises of liquor dealers and it determined that this authority is constitutional.

Both the majority and the dissenters agree that the rule of Camara versus Municipal Court and See versus City of Seattle was inapplicable to that case.

That rule of course is the one that requires a warrant for administrative search that has not been consented to but as I have said all justice, all of the justices agreed that that was --

Justice Thurgood Marshall: But there’s a little difference between a liquor and a gun?

Mr. R. Kent Greenawalt: There is Your Honor.

Justice Thurgood Marshall: Unless you can flush a gun down the toilet.

Mr. R. Kent Greenawalt: I believe, Your Honor, that for all relevant purposes, if that kind of search is -- or inspection is sustainable with respect to liquor industry it should be sustainable with respect to regulation of the gun industry.

Unknown Speaker: Historically, historically, certainly my Brother Marshall is correct that the government regulation of this production sale and distribution of alcoholic spirits has been pervasive in almost the beginnings and through the history of the Eighteenth Amendment, the Twenty-first Amendment but it -- long before that.

By contrast with firearms which have not been regulated until the very rule, the recent day, isn’t that correct?

It can either by to the states or the nation?

You know the --

Mr. R. Kent Greenawalt: Yes, that is essentially correct.

Unknown Speaker: And indeed you have a constitutional amendment, one of the Bills Of Rights relating to firearms which runs the other way.

Mr. R. Kent Greenawalt: Well, I do not think it runs the other day because that Amendment is not been interpreted before [Voice Overlap].

Unknown Speaker: I know it has but there’s nothing comparable with respect to alcoholic spirits.

Mr. R. Kent Greenawalt: That’s right.

It certainly is true that the history of a close regulation of the liquor industry is a much older one than close regulation of the gun industry.

Unknown Speaker: It’s been pervasive throughout our heads.

Mr. R. Kent Greenawalt: Has been pervasive.

There were --

Unknown Speaker: Taxes, regulations, everything else by contrast with firearms?

Mr. R. Kent Greenawalt: Yes, Your Honor.

There were old statutes before the constitution was adopted that prohibited concealed weapons and state regulation of the gun industry has proceeded in this century and there were federal laws on the book as early as 1934.

So when you say recent, it isn’t the last few years but it certainly is.

It isn’t the long history to the end.

The history isn’t of that such close regulation as existed with respect to liquor industry.

It is our contention however that reasonableness under the Fourth Amendment in this context in determining what kinds of inspection require warrants has to be determined with the view toward an evolving society and the needs of the society at this time and we do not see how it can be said that despite the greater history of regulation of the liquor industry that the need for inspection is greater in regard to liquor than it is with respect to lethal weapons and so are -- and I think that’s borne out by the findings of Congress in passing the most recent legislation in 1968.

Chief Justice Warren E. Burger: Mr. Greenawalt, what’s in your review -- what protection in your view does the constitutional right to bear arms reached and protect a dealer in arms?

Mr. R. Kent Greenawalt: As I understand the way the Court has interpreted, that constitutional protection.

It essentially relates to the state’s militia and I would think that it does not foreclose close regulation of dealers in firearms anymore than it forecloses the forbidding of the carrying of certain or possessing a certain kinds of firearm.

So essentially it is our contention that it has no relevance.

Justice William H. Rehnquist: Mr. Greenawalt, supposing these were the securities industry which I take it was not regulated at all in 1789 but as of 30 to 40 years ago is now very heavily regulated.

Would you feel administrative search of this type could be justified of a security’s dealer justice as well of a gun dealer?

Mr. R. Kent Greenawalt: Mr. Justice Rehnquist, we think that you have look at each area to see whether the test of Camara should apply to the test of Colonnade.

We do not think the fact that there is not a long history dating back to the time of the constitution of inspections without warrants is determinative but it might well be that the securities industry would be different from the gun industry.

Justice William H. Rehnquist: But why?

Mr. R. Kent Greenawalt: Well, I think the -- well, maybe it would be useful if I say why I think the gun industry like the liquor industry is appropriately subject to this kind of inspection.

First of all, unlike the ordinary homeowner or the person who had business premises in a sea, this is not a citizen who is just subject to searches that happen to every homeowner or every owner of a business office.

This is someone who’s licensed in a particular industry and a very closely regulated industry who knows who the authorities are that have power to inspect, what agency it is that’s regulating the gun industry.

So that -- first of all, when an agent of the Alcohol, Tobacco and Firearms unit shows up at his premises he is virtually certain that there is proper authority in that officer to inspect assuming that there isn’t a problem I think that there was in Camara or in See that somebody might show up in the -- the homeowner or the warehouse owner wouldn’t know whether this fellow really had the power to make a search.

Secondly and I supposed this is quite crucial, this is not like an ordinary administrative inspection.

If there is a fire hazard, faulty wiring or defective elevator and the inspector shows up and says I want to check your wiring, I want to look at your elevators, if entry is refused it’s unlikely that the condition is going to be corrected within three or four hours or however long it would take to get a warrant.

If the condition is corrected, the substantial purpose of the administrative regulation is achieved since the substantial purposes to correct the wiring or to get the elevator on proper working order and that just isn’t true here in respect to these inspections.

When the inspector shows up, if he has to go for a couple of hours to get a warrant, a gun dealer can just put aside whatever weapons may be illegal.

The inspector comes back with his warrant, he makes the inspection.

He doesn’t find the guns and then the gun dealer puts the weapons back in their place, I mean the entire purpose of the inspection would be forwarded.

Now, well, I think I‘ll stop there.

Chief Justice Warren E. Burger: Is this statute somewhat analogous to the provisions of the National Banking Act that authorize bank examiners to spoof in a bank and without any notice or without any warrant to examine the books and count the money in the cash door and securities in the safe?

Mr. R. Kent Greenawalt: It is essentially similar to that, yes.

Chief Justice Warren E. Burger: Has that ever been -- is the right of the bank examiner ever been challenged in any federal case that you’re aware of?

I know of none in this Court ever been challenged to --

Mr. R. Kent Greenawalt: Not so far as I am aware, Your Honor.

There are a great many statutes of this kind and I did inquire about some of them.

For instance, the Federal Aviation Agency has the power to inspect airports and so on and I gather that in most instances, in those activities that there’s fairly close cooperation and the desire not to upset the Federal agency that is governing until the searches are consented to as a matter of course.

That seems to be the typical experience.

Unknown Speaker: Mr. Greenawalt, factually there was reference and you made it to the fact that this man said, well if that’s the law then of course come in.

In the licensing process itself when one obtains the license of this kind is he given a copy of the statute?

Mr. R. Kent Greenawalt: I -- yes, I believe so copies -- that surely appeared in the record that copies of the statute were mailed to Biswell and that Agent Hupp saw on his desk or at some point that there was a warrant to seize the rest of the rifles the next day and he returned to the pawnshop at that point.

I think at that point, he saw a copy of the regulations that certainly Biswell have been notified of the content of the statute and had received the regulations indicating both what the substantive regulations were and the power of the agents of the division to search his premises, inspect his premises.

Unknown Speaker: So it’s your position there wasn’t any surprise on his part with the statute?

Mr. R. Kent Greenawalt: He did make a claim at trial that he subjectively was surprised that these weapons were outlawed but they have been outlawed since 1934 and in fact, although we believe that it was not necessary under Free versus United States, the District Judge gave a rather favorable instruction which I think the juror would not have –- under which I think a juror would not have convicted unless he believed that Biswell did know that these firearms were illegal firearms under the National Firearms Act.

Unknown Speaker: Mr. Greenawalt, if Biswell had refused entry to the locked vault what - then would -- have been the position?

Mr. R. Kent Greenawalt: Well, we think the clear implication of Colonnade is that if the liquor dealer had refused entry, he could appropriately be punished.

In fact, in the opinion says whether the imposition of a fine for refusal to permit entry is under the statutory scheme, the exclusive sanction absent to warrant to break and enter.

Unknown Speaker: Yes, (Voice Overlap) but in a different offense than the one that which he was convicted here?

Mr. R. Kent Greenawalt: That’s correct.

We -- yes, we believe that the -- there is general line --

Unknown Speaker: And Hupp could not have been broken it?

Mr. R. Kent Greenawalt: That’s correct.

And under Colonnade --

Unknown Speaker: If he had broken in and seized then Colonnade would have made it illegal.

Mr. R. Kent Greenawalt: Absolutely, yes.

Unknown Speaker: But you do rely on, if that is the law, I guess it’s alright.

Mr. R. Kent Greenawalt: Well, we rely on that and that --

Unknown Speaker: As what?

Mr. R. Kent Greenawalt: Not as consent in the ordinary sense.

Now I say in the ordinary sense because there is a qualification that I’d like to make.

Unknown Speaker: Well, I know that Mr. Justice Clark’s opinion below says that the government argued in that Court the appellant consented.

You’re not making that argument here?

Mr. R. Kent Greenawalt: I am certainly not making the argument that this is consented in the ordinary Fourth Amendment sense.

It is arguable that it is either consent in the sense that he got a license knowing what the regulatory scheme was and since it was reasonable, he sort of undertook this kind of obligation.

There is that argument and there’s also an argument that can be drawn from the opinion in Davis versus United States which suggest that the standard of consent may be different if there is a duty to admit someone or in that case it was public property rationing stamps that were involved.

Unknown Speaker: Well, Mr. Greenawalt, it is consent in the sense that it served to negative the use of force.

Mr. R. Kent Greenawalt: That’s correct.

It was in acquiescence in lawful authority.

Unknown Speaker: And that’s the -- the what -- that that’s -- what gets you around Colonnade?

Mr. R. Kent Greenawalt: Absolutely.

Unknown Speaker: I mean if he hadn’t have acquiesced, you would’ve been having some problem?

Mr. R. Kent Greenawalt: Absolutely.

Unknown Speaker: So it is a critical point?

Mr. R. Kent Greenawalt: It’s a critical point, the fact that he unlocked the warehouse itself.

Unknown Speaker: What do you do with Justice Clark’s disposition of it on Bumper?

Mr. R. Kent Greenawalt: Well, we just think Bumper is not applicable.

Bumper is an ordinary Fourth Amendment case, the kind of consent that’s involved.

There is a free voluntary agreement to do something that you are not legally required to do.

I think, I mean this is the key point in the case. Can Congress legally require the licensed firearm dealer to open up his storage room?

If it can legally require it then that eliminates the problem with physical entry that was post in Colonnade.

And if he --

Unknown Speaker: Well, you’re saying can Congress give the dealer a choice between going to jail and letting people in.

Mr. R. Kent Greenawalt: That’s correct.

Unknown Speaker: I mean, you say to him either you let us in or you will go to jail?

But you have your choice you can go to jail if you don’t want to let us in and we can’t break it.

Mr. R. Kent Greenawalt: That’s why we argued that it’s not consent in the ordinary sense.

But again I return to Mr. Justice Douglas’ opinion in Colonnade.

It was assumed in that case that he could be punished for refusing to open the storeroom that was --

Unknown Speaker: But we could also assume in that case if Congress could even authorize the agent to break-in?

Mr. R. Kent Greenawalt: No, it was assumed that it couldn’t -- well, as far as it could, I would say yes that the implication of the opinion is that Congress could but that of course is not involved here. We don’t argue that Congress has done that.

Assuming that --

Unknown Speaker: Is it clear to you that --

If he’d said yes I read the law here that you are showing me but I am not going to let you in that he would’ve been guilty of a criminal violation then and there?

Mr. R. Kent Greenawalt: Yes, I think one could make an argument on the other side but I -- we -- that is our position, the 924.

You don’t have the kind of specific language that you had in Colonnade about refusal to enter but 924 does make it a crime to violate any provision of this chapter.

Now, we believe that the inspection provision gives a clear right to the agent to enter and therefore if that entry is refused then that’s a violation of (Voice Overlap).

Justice Potter Stewart: It doesn’t explicitly at least in Hiberger (ph) impose an obligation.

(Voide Overlap) it just says internal revenue officers may enter.

It doesn’t say all licensees must permit agents to enter.

Mr. R. Kent Greenawalt: That’s correct Mr. Justice Stewart, it is.

Justice Potter Stewart: And there is a difference, maybe?

Mr. R. Kent Greenawalt: Well, you do not have the specific language that you have in Colonnade but we think that that really is surplusage that the clear implication of that provision is that the agents have authority to enter and that therefore the dealer has the duty to allow them to enter.

Even if we were wrong about that in terms of whether it’s criminally punishable whether 924 spells out the criminal sanction with such clarity that a refusal to allow entry would be a criminal violation.

We still think it’s clear that the import of the statute is that under the statute, dealers are supposed to allow entry and so then we view that by saying that you have a duty which might result in loss of license, might not result in criminal sanctions but nevertheless a duty illegally imposed by Congress so that once you do allow the entry that’s an acquiescence and a lawful duty imposed by Congress and that makes the inspection proper and that the fruits of the inspection therefore admissible in evidence in the criminal trial.

Justice Potter Stewart: It is not therefore a necessary part of your argument at all that his refusal to permit entry would be a criminal offense under the statute?

Mr. R. Kent Greenawalt: No, I would say it is a necessary part of our argument that he have a duty that he --

Justice Potter Stewart: Well, that Congress authorized the agents to enter.

Mr. R. Kent Greenawalt: And that the implication is that you are not supposed to keep the store room locked if the agents want to enter, yes.

Justice Potter Stewart: Right.

Right.

Mr. R. Kent Greenawalt: That is necessary.

But the criminal sanction is not.

Well, I deal briefly with the point that is raised in the amicus brief by Civil Liberties Union if the inspection was lawful we think it is clear that the evidence is admissible in a criminal trial.

Again, going back to Colonnade, that evidence presumably would have been admissible in a criminal trial.

The evidence was suppressed in that case.

There were criminal sanctions as they are here for the violation of the regulations in Colonnade as well as here and this Court has always assumed that contraband found in the course of a lawful inspection can properly be introduced in evidence.

In short, in summary, it is our position that Colonnade dictates reversal of the decision below unless the major reasoning of that opinion is to be repudiated or the gun industry regulation of the gun industry is to be distinguished from regulation of the liquor industry and we urge very strongly that in light of present social conditions, it must be that Congress has as much power over the gun industry in these terms as it does over the liquor industry.

I would like to reserve the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Reynolds?

Argument of Warren F. Reynolds

Mr. Warren F. Reynolds: Mr. Chief Justice and if it please the Court.

Our position is far as issue one is concerned in the petition brief is that not only does the gun inspection statute violate the Fifth Amendment rights of the respondent, I mean the Fourth Amendment, it also violates the Fifth.

That by forcing upon him the obligation to allow inspection he thereby incriminates himself of any criminal acts are discovered.

At the outset, I would like to point out to the Court that this came up, I don’t believe that it was relevant to the argument before the Court but I would like to point out that Mr. Biswell was found innocent for possession charges of the guns and found guilty of not being licensed.

So query, what did the jury believe?

I believe we are all confused about that outcome.

But getting to the constitutional question, actually what the petitioner is advocating here is the same thing that Franks did which this Court overruled later that is create an additional exception to general rule under the constitution that there must be a search warrant with probable cause before you can search not only private homes but the private portions of the premises of businessmen.

And in Frank as the Court recalls the Court in that case said well, if this is an administrative search which is essentially civil in nature, no criminal investigation that there are safeguards then we will allow such a search and call it to be constitutional.

The -- this Court in the Colonnade case which See followed as far as commercial premises are concerned indicated otherwise.

At the outset I would like to point out that it is the respondent’s feeling that there is a much greater issue facing this Court today other than just the gun statute which is a subject to this case.

As the petitioner cited in his brief, in his footnotes, there are some dozen pieces of federal legislation existing today which call for inspection of premises of businessmen all the way from poultry, drugs onto to a new act which we have now the National Safety and Health Practices Act.

Now, prior to the enactment of this Act most of these acts where a specialized area of business and probably didn’t step on the toes of these many people as this new Act will.

This Act covers all employers whose businesses are engaged in commerce and it contains penalties of up to $20,000.00 in one year for violations.

So I think that --

Unknown Speaker: What’s this new Act, directed to pollution?

Mr. Warren F. Reynolds: This is the Safety and Health Practices Act Mr. Justice.

It’s pointed at unsafe practices on business premises that are injuring employees and they have an inspection provision in there.

No call for search warrant and they have very heavy penalties.

Unknown Speaker: Is that in your brief?

That -- the reference to that statute?

Mr. Warren F. Reynolds: The reference to statute is in the petitioner’s brief, Your Honor.

Unknown Speaker: What do you mean, it’s a safe place to work concept?

Mr. Warren F. Reynolds: Yes.

Yes, it is Your Honor.

Unknown Speaker: And that is if there are defects unrepaired, broken stairways and things like that?

Mr. Warren F. Reynolds: I think it goes to machinery, almost any type of unsafe practice.

And the statute calls for inspections, in fact it calls for surprise inspections.

It’s a similar nature to your banking statute but it has far reaching effects and I think –-

Chief Justice Warren E. Burger: Are we to take it that what you’re suggesting is that all of those statutes like the present one before the Court violate the Fourth or the Fifth Amendment or both?

Mr. Warren F. Reynolds: If it please the Court, I think they violate both Amendments.

First they violate the Fourth Amendment because they evade the privacy right that we have under the Fourth and we also invade our self protection right but not only that they also invade the Fifth Amendment whereby we’re guarantee right not to be self-incriminated and the large --

Unknown Speaker: What is their testimonial about finding improper doing?

Mr. Warren F. Reynolds: If it please the Court.

Its evidence against a licensee in this situation and if according to --

Unknown Speaker: Of course the guns are evidence against him?

Mr. Warren F. Reynolds: Yes.

Yes.

Unknown Speaker: But how do you get to put, how does that become testimonial?

That’s what we do with distinction in Schmerber in that line of cases between testimonial and non-testimonial?

Mr. Warren F. Reynolds: I’ll please the Court.

I know this Court overruled Franks but Franks did indicate that there was also the Fifth Amendment danger in this sort of situation in that if I -- as a condition of a license have a duty to inspect which the Government contends then I in essence have submitted myself to the Government obtaining evidence against me which will be incriminating.

This is what the Government is arguing.

That actually there’s an implied consent here to the search.

And that as a requirement of the license is the -- in the giving of a privilege the Government requires that I give up my Fourth and Fifth Amendment rights.

Unknown Speaker: Well, I don’t understand this.

We’ve said that handwriting, exemplars fingerprints.

Things of that nature are not testimonial and therefore not involved with the privilege against self-incrimination.

Now, I don’t quite understand how this is?

Mr. Warren F. Reynolds: Well, I think it’s a broad proposition, Your Honor.

Unknown Speaker: You’re relying I gather on Mr. Justice Black’s view that he expressed in Mapp against Ohio and without his view, Mapp against Ohio could not and would have been decided the way it was.

Mr. Warren F. Reynolds: And I think the Court recognize it Franks where they indicated that they recognize the fact that in almost all of the search and seizures, it were condemned under the Fourth Amendment.

They’re also condemnable under the Fifth Amendment in enforcing a man to have his premises searched without consent so that he’ll be incriminated.

Unknown Speaker: So you’re saying every illegal search is a violation of the Fifth Amendment law of the Court?

Mr. Warren F. Reynolds: I believe it is, Your Honor.

I think it is more applicable to be pointed out in this case.

Unknown Speaker: If at least, if it turns up something that tends to prove a criminal violation by the owner of the premises that is introduced against him?

Mr. Warren F. Reynolds: Yes and it’s introduced against them.

Justice Thurgood Marshall: Does that apply to all the liquor laws?

Mr. Warren F. Reynolds: I think it would, Your Honor and --

Justice Thurgood Marshall: Do you have the outsets in three -- all cases?

Mr. Warren F. Reynolds: I realize that but I think that the safeguards.

I mean, this is my feeling there is no specific language but I believe the safeguards that were spoken of in Colonnade were more broad than just the mere procedure that an inspector went through.

I think the safeguards and the only safeguard that any person in this position who is a licensee and whose premises must be inspected and if the courts fail that it’s in the public interest they must be inspected then there should be a provision in that act that any infractions found of a criminal nature would not be use as evidence against the many criminal proceeding.

This would be similar to the Haynes, the legislation that arose out of the Haynes decision.

The Haynes decisions in 1968, the Congress and the Federal Farms Act enacted a statute specifically to overcome the effect in that case.

Justice Thurgood Marshall: Well, your point is, whether or not they can be licensed.

Is that your point?

Mr. Warren F. Reynolds: I beg your pardon?

Justice Thurgood Marshall: Whether or not they can be required to have a license.

Mr. Warren F. Reynolds: No, I am not disputing the fact that the requirement to have a license is unconstitutional.

Justice Thurgood Marshall: Well, what would be the purpose of the license?

Mr. Warren F. Reynolds: The purpose of the license would be to insure compliance with the act and ensure that a proper --

Justice Thurgood Marshall: Well, how could that be found out without inspection?

Mr. Warren F. Reynolds: Oh!

I -- what I am -- what I have not -- I am not saying per se inspection should not be in the statutes.

What I am saying is that on a case by case basis, this Court and the lower courts look at the situation that if the public interest is not deterred by requiring a search warrant then let’s protect the privacy interest of the businessmen.

These statutes are rapidly encroaching upon all areas of our life and on the other hand if that is in Colonnade and if the Government is correct --

Justice Thurgood Marshall: Well, in the Colonnade they had found poisoned whisky.

It’s your position that there’s nothing the Government could do?

Mr. Warren F. Reynolds: My suggestion is that they should have gotten a search warrant in that case, Your Honor.

Justice Thurgood Marshall: But it is -- well, suppose the poisoned whisky is sitting on the counter outside?

Mr. Warren F. Reynolds: On the counter outside, well, I think there’s been a decision that if it’s in a public area then certainly it can be inspected.

Justice Thurgood Marshall: Which is the same in this case?

Mr. Warren F. Reynolds: Well, this wasn’t a public area.

Justice Thurgood Marshall: That’s what I’m saying.

Mr. Warren F. Reynolds: Yes.

Justice Thurgood Marshall: But there’s no objection to that.

But not if they go into back them and they find poisoned whisky, they can’t use it?

Mr. Warren F. Reynolds: Not unless they have a search warrant.

Justice Thurgood Marshall: I’d think -- and by the time they got to the door to get ready to go to get the search warrant, where would of course the whisky be?

Mr. Warren F. Reynolds: Well, I believe that we’ve had several cases outside into my brief that said this; no problem is one of the options hanging around keeping them from disposing this.

Justice Thurgood Marshall: But I’d -- the only purpose was you don’t oppose the licensee.

You are not opposed to that?

Mr. Warren F. Reynolds: No, I’m not opposed to the licensee.

I am not opposed to the inspection.

Justice Thurgood Marshall: You’re not opposed to being licensed on the statute which says you shall let them in?

Mr. Warren F. Reynolds: I am opposed to inspections into -- in the alternative.

Number one --

Justice Thurgood Marshall: Well, I thought you said you didn’t mind the inspections so long as they didn’t use it.

Mr. Warren F. Reynolds: So long as they –- well, number one, I think we have to first look at the area of the businessman’s privacy.

Now I think on a case by case basis the Court should balance the interest of the privacy guarantee under the Fourth Amendment.

Justice Thurgood Marshall: There are number of reports that the businessman has to file with the Federal and State Government, how much privacy does he got left?

Mr. Warren F. Reynolds: He doesn’t have much, Your Honor.

But what I’m trying to say is that actually, there has to be a balance on a case by case basis, the privacy of businessman versus the interest to the public for the particular Act to be implemented.

Now if this Court sees fit to say that the interest of the public is greater than the Fourth Amendment interest of privacy, then at that point it is our position that anything discovered during such an inspection should not be used in a criminal prosecution against them.

Revoke his license, put him out of the business but let’s not force him as a privilege of doing business be subject to criminal persecution.

This is what happened in -- as a parallel like I said in Haynes cases.

This is what happened with subsequent legislation.

They said from now on you still have to register guns but we aren’t going to use that evidence against you in a criminal prosecution.

And there’s no reason why we can’t do that in these inspections statutes.

We still accomplish the purpose.

We inspect.

We see that there’s no illegal activity.

We are able to trace guns to clear up criminal activity.

On the other hand, we don’t take away this man’s constitutional rights as a privilege of doing business and this Court has condemned that in other cases.

On the other hand, if he doesn’t fulfill his obligations as a gun dealer, let’s take his license away from him.

But let’s not throw him in jail because we have granted him a privilege and in turn took away his constitutional rights.

This could be done in lots of areas.

Chief Justice Warren E. Burger: Well, wouldn’t you make this same argument if this had been a proceeding to cancel his license on the basis of the search that was made?

Mr. Warren F. Reynolds: I probably would, Your Honor but I don’t think it would be a strong -- [Laughter].

There we’re dealing with a civil right.

Here we’re dealing with criminal prosecution.

We’re dealing with sentences up to five years in jail, incidentally he received a two-year sentence.

Justice William H. Rehnquist: Mr. Reynolds, it seems to be a fair implication from the court’s opinion on the Colonnade case that if your client had been in the liquor business and that same had happened that the search would have been permissible.

Do you disagree with that as a statement of the holding or the -- at least the dictum in Colonnades?

Mr. Warren F. Reynolds: If it please the Court.

There seems to be two areas of dicta in that case.

On the one hand, the Court seems to attempt to distinguish Colonnade from See and the other case.

But on the other hand, the Court did make a broad statement that there were not reasonable safeguards in the statute and that as a consequence they were going to hold that the Fourth Amendment have to apply.

Then they went on and stated that the Congress did not authorize a remedy of forcible entry when consent was refused merely a criminal penalty.

But I think that the issue was really narrow in Colonnade and I think there is enough dicta there to there indicate that this Court would look at it on a case by case basis.

Justice William H. Rehnquist: When you say that, you mean the liquor industry being one case and the gun industry being another?

Mr. Warren F. Reynolds: Yes, but I don’t think the Court even went this far to say that even in the Colonnade case.

I don’t think it went as far to say that the Government has an absolute right to inspect but you can’t bust in the door.

They did talk about safeguards in here.

They didn’t tell us what safeguards.

But they did talk about them.

And they said they were no safeguards and this certainly isn’t contradictory to Camara and See.

Chief Justice Warren E. Burger: Don’t you read Colonnade as permitting an examination in an inventory of every bottle of liquor that was in sight of the agent in the Colonnade case?

Mr. Warren F. Reynolds: I don’t read it quite that narrow, Your Honor.

I think it’s a broader holding, it’s unfortunate that it was a forced entry.

Maybe we would have a clearer decision today.

But I think that this Court should look at Camara and See and go over the factors that went over we’re gone over by this Court in that case and determine this case on a case by case basis.

Thank you.

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

Do you have anything further Mr. Greenawalt?

Rebuttal of R. Kent Greenawalt

Mr. R. Kent Greenawalt: Just very briefly, Your Honor.

Mr. Chief Justice, we don’t expect the Court or ask the Court in this case to uphold the inspection provisions of every federal statute that provides for inspection without a warrant.

We do think that there may be differences and their differences in the practices now, for instance, I am told that in regard during inspections of food, that there’s never been any problem because they would simply stop inspecting the food if the inspections weren’t permitted and then I suppose the food will be harder to sell.

The FDA has informs people that they have a right not to consent to a search without a warrant and goes out and gets warrants.

It’s acting in accord with the holding of Camara and See, and the considerations there may be quite different and they are in the gun industry.

Unknown Speaker: What the -- do you have the citations of the statute which probably mentions the more recent statute, the more general one?

Is that in the briefs anywhere?

Mr. R. Kent Greenawalt: I’m not sure.

Unknown Speaker: You said it was in your brief and in Roman 3 of your brief, two and three they’re all -- three or four dozens, that’s a choice I take, which is it?

Mr. R. Kent Greenawalt: I’m not -- Its footnote 5 on page 10 but I am not sure precisely which statute he’s referring to.

Unknown Speaker: This one purportedly authorizes -- excuse me.

As long as the citation is there, I take is somewhat (Inaudible).

Justice Potter Stewart: It will be helpful to get it.

Mr. R. Kent Greenawalt: It seems to be Title 29, Section 657.

I am not sure whether that is in this footnote or not.

Unknown Speaker: 29 - 657 that is one that purports to authorize inspection of any employer engaged in commerce.

Mr. R. Kent Greenawalt: I am not sure whether that’s an accurate statement of the statute.

In any event, we think that the relevant factors are whether somebody has knowingly undertaken an obligation as a licensee, the reasonableness of the regulation whether there’s a narrow and falsely regulated industry so that the authority of the inspector is known and the person knows the area to be inspected, how great the invasion of privacy is here -- reached on the business premises and whether there is a need for surprise as there are -- as there is this case.

Justice Thurgood Marshall: Did he on notice that if an inspection is made which comes out as a search that the material found can be used against him.

He hasn’t consented to that, has he?

Mr. R. Kent Greenawalt: I think Mr. Justice Marshall he is effectively on notice of that and I presume that is why he was hesitant to consent to the inspection in this case.

He certainly must have feared that.

Justice Thurgood Marshall: You know the -- you said they already consent it was because he assumed he’s dead but there’s nothing in that statute that said this information can be used against him?

Mr. R. Kent Greenawalt: There’s nothing.

There’s not a specific language to that effect.

Justice Thurgood Marshall: There is no language.

Well, show me any language to that effect.

Mr. R. Kent Greenawalt: The only line -- there is no language to that effect but there are very substantial criminal penalties for a variety of acts and there is a provision that the Secretary can enter the premises during business hours to inspect.

Now, I would think that an ordinary, reasonable businessman would know that if criminal violation is found during an inspection he is in serious trouble and maybe prosecutor and that the agent, he is going to testify as to what he found in the inspection and is going to produce any contraband that was seized at that point.

Unknown Speaker: Mr. Greenawalt, if these guns were inadmissible in evidence in the criminal prosecution under our cases, would it also follow if they could not have been seized at that time?

Mr. R. Kent Greenawalt: Well, I would move it backwards and say if they can be seized, they can be introduced in a criminal prosecution.

Yes, it would be noble rule to say that the contraband which is properly seized cannot be introduced in the prosecution.

Unknown Speaker: What if it were held that they couldn’t be introduced in a criminal prosecution but you nevertheless permit their seizure?

Mr. R. Kent Greenawalt: Well the ACLU accepts that rule in its amicus brief.

It says you can seize them because they are contraband but because of the self protection and of course you can’t admit them in a criminal prosecution.

That as far as I know is without support of any opinion that’s been written on the Court in the majority or in the dissent.

Unknown Speaker: And how about if you couldn’t seize them either, could you use the -- could you use what you saw as a basis for revoking a license?

Mr. R. Kent Greenawalt: Well, I would think you’d run into the same problem there.

Why should you be able to use it to revoke a license if you can’t use it in a criminal prosecution?

So again I would think the logic of the court’s Fourth Amendment rulings is that if –-

Unknown Speaker: You don’t think really you could distinguish between permitting a search for the purpose of enforcing the obligations of a licensee and yet not permitting the evidence to be used in a criminal prosecution.

Mr. R. Kent Greenawalt: Well, first of all that would be inconsistent with anything this Court has ever said about the Fourth Amendment.

And there are -- the Zap case which is cited in our brief is an example of inspection without a warrant.

They are consented to by contract and in which it was introduced in the criminal trial and that’s been the assumption of every holding.

Practically, the result of the rule, that kind of rule in this area would be to require the Government to get warrants, I think it would -- since these are very serious violations of the criminal law in most of the weapons that are forbidden under the National Firearms Act for the things like machine guns and bombs and hand grenade.

In addition, the sort of rifles and shot guns and if the Government upon finding that could not be used as evidence in a criminal trial, it would certainly defeat the purpose of the inspection.

I might -- just one point in answer to Mr. Justice Marshall’s point that Colonnade statute did not contain any language of the client that you suggested either and so I again would say this case is governed by Colonnade on that.

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

Thank you, Mr. Reynolds.

The case is submitted.

Featured:

Gelbard v. United States - Oral Argument

Thu, 23 Aug 2012 18:19:43 +0000

Case:

Gelbard v. United States

Media File:

71-263_19720327-argument.mp3

Related Transcript:

71-110_19720327-argument

Transcript:

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.

Featured:

Gelbard v. United States - Oral Argument (No. 71-263)

Wed, 06 Mar 2013 16:33:21 +0000

Case:

Gelbard v. United States

Media File:

71-263_19720327-argument

Related Transcript:

71-263_19720327-argument

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.

Featured:

United States v. U.S. District Court - Oral Argument

Thu, 23 Aug 2012 18:17:40 +0000

Case:

United States v. U.S. District Court

Media File:

70-153_19720224-argument.mp3

Related Transcript:

70-153_19720224-argument

Transcript:

Argument of Mr. Chief Justice Burger

Mr. Chief Justice Burger: We’ll hear arguments next in Number 70-153, United States against the District Court and others.

Mr. Mardian, you may proceed.

Argument of Mardian

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

This case arises from a criminal proceeding which is now pending in the District Court for the Eastern District of Michigan, in which the three defendants were charge with a conspiracy to destroy Government property.

One of the defendants, the defendant Plamondon was also charged the substant violation of destroying Government property.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Would you raise your voice a little Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Yes, sir.

The indictments in this case resulted from the dynamite bombing of the Offices of the Central Intelligence Agency Building in Ann Arbor, Michigan.

During the course of the pretrial proceedings, motion was made for discovery of information relating to electronic surveillance that might be in possession of the Government.

In response to this motion, the Government served upon the movements an affidavit of the Attorney General of United States, in which he acknowledged that one to the defendants, the defendant Plamondon, had been overheard in the course of a surveillance authorized by him in which he deemed necessary in the interest of the National Security United States.

The affidavits stated that the disclosure of this information would be prejudicial to the interest of United States.

In addition to serving the affidavit on the movements and filing it with the Court, the Government also submitted to the Court for its in camera inspection, the logs of the over hearings requested by the defendants, included in that in that in camera submission, the Government also offered the of -- the proof of the authorization to the Attorney General of United States for the surveillance and question conducted prior to the time of the bombing.

The in camera exhibit will show, which is now before this Court, that it contains a memorandum from the Director of the FBI to the Attorney General, in which he sets forth all of the electric -- electronic surveillances operated by the Government at that time, approved by the Attorney General or by the former Attorney General.

Prior to submission however, the Government excised the names of the organizations and individuals which were the subject of surveillance with the exception of the organization which this -- which was the subject of surveillance in this case.

That in camera submission will also show, a characterization in the form of the memorandum from the Director of the FBI to the Attorney General, the organization in question, its leadership and its illegal aims and information relating to the fact that the organization was engaged in activities of a type which would ultimately lead to the destruction for the United States Government before some violence.

This in camera submission would also show that the authorization of the Attorney General was for a limited period only.

It described the premises where the installation surveillance was involved and indicated that the surveillance was subject to periodic review.

Based upon this in camera submission, the United States urged that the surveillance and question was lawful.

Justice Potter Stewart: Periodic review by whom, the Attorney General or the Director of the FBI?

Mr. Mardian: Pardon me, sir, I didn’t --

Justice Potter Stewart: You said it was subject to periodic review and by whom?

Mr. Mardian: By the Attorney General of the United States.

Justice Potter Stewart: By the Attorney General.

Mr. Mardian: Yes, sir.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Now is this surveillance, this pattern of surveillance traceable back to the directive which President Roosevelt gave to Attorney General Jackson in this area?

Rebuttal of Mardian

Mr. Mardian: Yes, Mr. Chief Justice.

The Government urged that this was a lawful surveillance exercised under the jurisdiction of the President United States and --

Justice Thurgood Marshall: Is that memorandum in the record?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: Of President Roosevelt?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: Are the other memorandum in there since then?

Mr. Mardian: Yes, Your Honor.

Justice Thurgood Marshall: That’s all here?

Mr. Mardian: Yes, Your Honor.

The Government’s position based upon this in camera submission and the affidavit of the Attorney General was at the surveillance.

It was a lawful as reasonable exercise of the presidential powers in the area of national security.

The District Court after reviewing the in camera submission and I should point out in this regard, that the in camera submission was not intended as a justification for the authorization but simply of proof of the fact that the authorization had been granted by the Attorney General of the United States over his own signature.

The respondent court, Judge Keith, held based upon the affidavit and the in camera submission that the overhearing should be disclosed to the defendants as a plaintiff to an evidentiary hearing to determine whether or not the information contained on the logs contributed in any ways to the prosecution of the defendant Plamondon.

It took -- made this holding on the basis that the President of United States was without authority to authorize a surveillance absent -- the judicial in a position of a warrant by sitting a federal judge.

The United States immediately petitioned for a writ of mandamus to the Sixth Circuit Court of Appeals and the Sixth Circuit unanimously held that mandamus was an appropriate remedy but by a divided Court concurred in the judgment of the District Court on the basis, in the words of Justice Edwards, that there was not one phrase or word in the Constitution in the United States, in the statutory law of United States or the case law of the United States that exempted the President of United States from the provisions of the Fourth Amendment.

We do not contend here, Your Honors that the President of the United States either individually or acting through the Attorney General is exempt from the provisions of the Fourth Amendment or is above the provisions of the Constitution.

We do suggest that this case puts into issue an intelligence function and procedure which has been sanctioned by six successive Presidents acting through 12 successive Attorneys General.

And while the Constitutional issue is grave and the stakes as far as the Government are concerned is high, the issue before the Court can be easily framed.

Stated negatively, the question is not whether electronic surveillance is a permissible governmental tool.

More narrowly claimed, the question is whether in a limited area of counterintelligence activities, the President of the United States may authorize electronic surveillance in the absence of a warrant by a member of the judiciary of this nation.

In order to understand the case and to properly resolve it, I think we must first understand the factual setting as distinguished from the other cases that have been before this Court.

This is not a case such as the Katz case or the Black case or O’Brian or Alderman, where electronic surveillance was authorized for the purpose of obtaining prosecutive evidence in a criminal proceeding.

Nor is it a case as in those cases where the defendant was the target of the electronic surveillance which was authorized.

We have here as we had in the Clay case, a situation where one of the defendants unfortuitously or fortuitously depending upon the outcome of this case happen to dial a number which was the subject of a surveillance authorized by the President of the United States acting through the Attorney General.

The Government contends contrary to the distinction made by the lower court, that the President of the United States is imbued with two powers in order to carry out two responsibilities.

Both lower courts distinguished the Clay case on the grounds that the power exercised in that case was an aid of the powers of the President in the area of Foreign Affairs related that power to defending the interest of the United States against the acts of hostile foreign powers.

United States urges that they -- these two powers are separate and distinct.

The one power or the power of the President in the area of Foreign Affairs is granted upon the fact that the President is the exclusive national organ of the United States in the area of Foreign Affairs.

The other power is granted upon the responsibility and obligation of the President to protect the security of the United States against its enemies whether foreign or domestic.

Because counterintelligence activities often involved both powers, there’s some confusion has come to exist.

In counterintelligence activities involved in the area of Foreign Affairs.

The purpose is to -- purpose of the surveillance is to permit the President of United States to obtain the ongoing intelligence information which is necessary to him to compete on at least an equal footing with the information obtained by foreign powers with whom he has to deal.

In the area of National Security however, the intelligence that is sought is for an entirely different purpose and the power and responsibility are grounded upon the President’s function in protecting the National Security against the enemies of the United States whether foreign or domestic.

Out of this confusion in dichotomy, the cases have discussed both powers as if they were one, and I think these case points up most eloquently the confusion which has existed between foreign and domestic intelligence.

The Government contends that as a legal and as a practical matter you cannot distinguish between foreign and domestic intelligence unless you use the situs of the installation as a basis for making a distinction.

Both lower courts however were not confused with this problem.

They did not reach it.

The respondent court grounded its decision on the basis that the intelligence function exercised here was for the purpose of surveiling a domestic organization and failed to distinguish the difference between surveiling for the purpose of obtaining intelligence information as distinguished from the nature of the organization from which the intelligence was sought.

We suggest also that the constitutional authority of the President is not found in any one provision or any one Article but may be gleaned from the Constitution as a whole and I speak now only for the Constitutional authority of the President in the area of National Security Affairs.

Justice Potter Stewart: Does the Congress of the United States has a great deal of constitutional authority in the area of internal security and domestic affairs.

I suppose if your argument is correct that Congress could delegate an agent of the Congress to do this investigative surveillance, could it not?

Mr. Mardian: The Congress has undoubted authority in the area of national security, I think you, as pointed out in the amicus brief filed by the National Lawyers Guild and the Black Panther Party in Article 1 Section 15.

The Constitution provides the States that the Congress shall provide for the calling of the Militia of the United States in the event of insurrection.

The amicus brief asserts that because of this provision, the Congress of the United States as distinguished from the President is -- has fair amount authority in the area of the internal affairs of the country.

I would point out in that regard that the Second Congress confederates of the provision of Article 1 Section 15, did provide for the calling of the militia and repose that responsibility in the President of the United States, post statutes enacted it the Second Congress now subsist in 10 U.S.C. 1031 and 1032.

Justice Potter Stewart: Well, my question is, was direct to this, is it your contention that only the President has this power through the appropriate cabinet officer or would the Congress not also have at least equivalent power in this area, if you’re right?

Mr. Mardian: I would agree, Your Honor.

In fact I think in this area as the Court -- this Court pointed out in Colonnade Catering, the Congress the United States has broad powers.

Justice Potter Stewart: And broad investigative powers that’s been held many times?

Mr. Mardian: Yes, in fashioning a rule of reasonableness under the Fourth Amendment.

Justice Potter Stewart: And I mean, I’m not -- I mean that if you’re right that the executive, the Chief Executive can do this through his designated agent cabinet officer, why couldn’t Congress equally do this investigating surveillance throughout the country through its designated agent?

Mr. Mardian: I think this type of activity Your Honor is peculiarly within the executive function.

I would like --

Justice Potter Stewart: Under the Constitution, you think it's entrusted exclusively to the President?

Mr. Mardian: I would not wish to state at this argument, Your Honor.

That it is within the exclusive province of the President of United States but only that this type of activity is peculiarly within the executive function which I would hope to show.

Unknown Speaker: Well, isn’t the constitution expressly reposes the executive function of the President and Congress passes laws and the President executes them?

Mr. Mardian: Yes, Your Honor.

Unknown Speaker: But wouldn’t you -- I take it that you would as Mr. Justice Stewart suggested Congress does have authority in this area and I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case?

Mr. Mardian: That issue is not before this Court and --

Unknown Speaker: My next question will suggest that it did?

Would you say though that Congress could forbid the President?

Mr. Mardian: I think under the rule announced by this Court in Colonnade Catering that within certain limits, the Congress could severely restrict the power of the President in this area.

Unknown Speaker: Let’s assume Congress says then that the Attorney General or the President may authorize the Attorney General on specific situations as to carry out electronic surveillance if the Attorney General certifies that there is a clear and present danger to the security of the United States.

Mr. Mardian: I think that Congress has already provided the -- that in the --

Unknown Speaker: Well, would you say Congress would have the power to limit surveillances to situations where those conditions where satisfied?

Mr. Mardian: Yes, I would concur on that, Your Honor.

Unknown Speaker: Well, do you think this affidavit squares with this Safe Streets Act?

Mr. Mardian: As I try to suggest the affidavit, it was never intended as the basis for justifying the surveillance in question.

The affidavit --

Unknown Speaker: Why was it ever filed in the Court?

Mr. Mardian: The affidavit was filed with the movements.

The justification and again I suggest it -- is only a partial justification as contained in the in camera exhibit which was submitted to Judge Keith.

I think where the Attorney General to set forth any -- everything that --

Unknown Speaker: Well, I put it to you this way, do you think the affidavit satisfied alone -- standing alone satisfies the Safe Streets Act?

Mr. Mardian: No, sir.

And we do not rely upon the affidavit itself with the in camera exhibit.

I think the in camera will show in the characterization of the organization involved which was submitted to the Attorney General at the time the Director of the FBI sought authority from him to engage in the surveillance that the organization involved was in -- then engaged -- enacts activities which they hope would ultimately result in the destruction of our form of Government by means of illegal force.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: We’ll resume at that point after lunch, Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Yes sir.[Lunch Recess]

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You may proceed Mr. Mardian.

Rebuttal of Mardian

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

At the noon recess, I prepared to continue my response to Mr. Justice White and I would like to finish the answer to my question if I may and with respect to the in camera submission, Your Honor.

The in camera submission to the court was intended for the purpose of satisfying the court as to the authorization of the Attorney General of United States in the finding of the Attorney General.

I would like to point out in this regard --

Unknown Speaker: Which finding?

That’s in the -- that is contained in the in camera documents or in the(Voice Overlap)?

Mr. Mardian: Yes, that the in camera document which the Attorney General signed which contained the authorization from the surveillance in question.

I should like to point out that the --

Unknown Speaker: But that -- I take it that you would say that that authorization would contain something of substantive differences in this affidavit filed to the Court.

Mr. Mardian: Yes.

In the procedures then followed which if you recall this case arose out of a bombing that occurred in September 1968 and the indictment return in 1969.

Unknown Speaker: Well, I will put it this way, if all the in camera document contain with was this affidavit contain and the document(Inaudible)?

Mr. Mardian: I would concur in that, Your Honor.

I think you will find that the authorization which requested contained that information and was approved and signed by the Attorney General of United States.

Unknown Speaker: Well, it may -- maybe it contains information but does it contain a certification of the Attorney General that the standards set down by the Safe Streets Act that are complied with?

Mr. Mardian: I think that is satisfied by the signature of the Attorney General approving the authorization based upon the evidence which is contained in the request of authorization.

Unknown Speaker: He didn’t -- he doesn’t -- it doesn’t express his conclusion in so many words that this represents a clear and present danger to the United States?

Mr. Mardian: The requested authorization states that it’s requested because it does pose a clear and present danger to destruction existence of Government and the Attorney General approved that statement.

Procedures now in existence are different and would contain an expressed finding to that effect directed to the Director of the FBI.

I would like to point out --

Justice Thurgood Marshall: Does it give any basis for it?

Mr. Mardian: Yes, sir.

Justice Thurgood Marshall: It gives the detailed basis for why it is?

Mr. Mardian: No, I would say that it would be conclusionary, Your Honor more than setting forth each specific fact.

We keep in mind the decision-making process in this area is based upon the entire spectrum of intelligence information available to the Attorney General and not only the information supplied in by the Director of the FBI.

Justice Thurgood Marshall: Well, is that subject to any review by anybody?

Mr. Mardian: Limited judicial review I would say, Your Honor.

Justice Thurgood Marshall: Or how limited?

Mr. Mardian: In this area, I think the review should -- is limited to a determination of whether or not there was a gross abuse of discretion by the Attorney General acting for the President and making the authorization.

Justice Thurgood Marshall: Well, what could you find as a basis for determining that without the facts of some kind?

Mr. Mardian: Well --

Justice Thurgood Marshall: Well, what do you need other than conclusions?

Mr. Mardian: I would say, Your Honor that this goes right to the heart of a matter.

In this area, certain of the information which is available, all of the information which is available to the Attorney General of United States and through him to the President is not available to each investigative agency of government.

There is an entire spec --

Justice Thurgood Marshall: Is it available to the Courts?

Mr. Mardian: All of that information is not made available to the Courts.

Justice Thurgood Marshall: So then how does the Court determine the constitutional rights of the persons who claim that right not to be surveyed?

Mr. Mardian: We suggest that in the limited area of counterintelligence activities of Government as distinguished from the situation where a warrant is sought for prosecutive purposes.

That the executive function in this area is somewhat limited and that where the President of United States acting through the Attorney General or the Attorney General himself or one of his subordinates to lay before a sitting Federal Judge of the entire spectrum of information consisting of teletypes, letterhead memorandum and all of the information that comes from not only the FBI but from other agencies such as the Central Intelligence Agency, the National Security Agency, the Alcohol-Tobacco and Firearms Division of the Department of Treasury, and other investigative agencies of the Government.

All of these are reposed, all this information is reposed and files in the Attorney General of United States before he makes the authorization or grants the authorization requested, and I would point --

Justice Thurgood Marshall: Would that not be shared with the Federal Judge in camera?

Mr. Mardian: I think as we attempt to show in our brief the function of the courts --

Justice Thurgood Marshall: Well, let me ask you this, doesn’t the Federal Judge take the same oath the Attorney General take?

Mr. Mardian: Yes, sir.

The function of the Federal Judge in criminal cases is twofold.

One, the judge must determine the need for the evidence sought.

He then must make a determination as to whether or not there is probable cause to believe that a crime has been committed or is about to be committed before he authorizes the warrant.

Now, the first of this decisions is to whether the information is needed such as in the area of National Security, counterintelligence information, if you please.

It is the Government’s position that the magistrate, the sitting Federal Judge is not in a position to determine whether or not the information is needed much less appreciate in many cases the importance of the information sought unless that is to be exposed to that judge along with any one of over 600 Federal sitting judges, all of the information available to the executive in the area of National Security.

In this connection, Justice -- rather Professor Telford Taylor addressed himself to the problem in connection not with National Security Intelligence, counterintelligence if you please, but with respect to the authority of the judge and the ability of the judge to issue a warrant in an ordinary criminal case.

And if I may, I’d like to quote from Professor Telford Taylor and not that I ascribe him with his views with respect to warrants issued in criminal cases but he says, “What proper business is it of a judge and what experience of facilities does he have that will enable him to decide whether or not surveillance of a particular type is warranted in a particular case.”

He is pointing out I think the same thing that was pointed out in the report of the Committee of Privy Councilors when they addressed themselves to this question in England.

The question there was, whether or not the par at issue warrants for electronics surveillance should remain in the Secretary of State or should be reposed in the Federal Judiciary?

Justice Thurgood Marshall: But of course the Privy Council isn’t bound by the Fourth Amendment?

Mr. Mardian: No, but I think the Privy Council report is acutely aware of the right of privacy as it exist in England as much as it exist in the United States and it addresses itself to the question of whether or not the granting of this authority counterintelligence cases is in the best interest of the right of privacy of the individual and it concludes that it is not.

It concludes in its report, there will be a weakening of the process.

That there will be a diffusion of authority to anyone of the Federal Judiciary or the Judges in England rather than reposing that responsibility in one man and one man alone and we would suggest that the interest of privacy of the American citizen is better protected in limiting this authority in the area of electronic surveillance and counterintelligence cases to one man.

The Attorney General acting for the President of the United States rather to proliferate it amongst all of the Federal sitting Judges in United States and we say that not in connection with those cases where the judicial process is one of the determining probable cause.

But only in those cases and in the limited area of counterintelligence where the decision-making process requires a judgment as to the need for the intelligence information sought and we would suggests in this regard also that information obtained by the Government for counterintelligence purposes in this area is not used for prosecutive purposes and is not sought for prosecutive purposes.

Justice Thurgood Marshall: (Inaudible) here is the petitioners, I mean, the respondents rather the people that were before the Court and the respondent court take position that it was.

And they want to find out whether it was?

Am I right?

Mr. Mardian: I believe that is there contention but I think that in camera exhibit will show beyond question.

That the authorization in the case was totally unrelated in the information obtained was totally unrelated to the crime for which this defendants where indicted.

Justice Thurgood Marshall: Cause it showed that it wasn’t use?

Mr. Mardian: Yes, sir.

I think in camera examination will disclose as the Fifth Circuit found in the Clay case that the information and detained in the logs could not in any ways of a --

Justice Thurgood Marshall: But the Clay case was fined espionage, wasn’t it?

Mr. Mardian: The burden of the Court however in both cases is the same.

We do not have as we had in Alderman as was described by counsel in that case, case loads of electronically monitored conversations which would require -- which the Court would have to examine in juxtaposition to the skeletal averments of a criminal indictment.

We have as the counsel in the Alderman case suggested not even sheaves of papers, something less than sheaves of paper.

Not unlike Jenks Act materials, not unlike Grand Jury minutes which this Court as could the Circuit Court and the District Court have examined to determine that the overhearings were totally unrelated to the crime for which these people where indicted and I think that beyond question in camera exhibit will show that the purpose of the surveillance was for the sole and limited purpose of obtaining counterintelligence information as distinguished from prosecuted evidence in a criminal case.

Unknown Speaker: This arguments -- do you make and even on the assumption that the surveillance was illegal?

Mr. Mardian: I think it would apply equally.

Yes, sir Mr. Justice.

Unknown Speaker: Even if the surveillance were deemed to be an illegal one by this Court that it nevertheless didn’t taint these proceedings.

Mr. Mardian: I think in the –-

Unknown Speaker: And that -- and you say the taint should be considered in camera rather than a --?

Mr. Mardian: I think that in the setting of this case the burden would be no greater than the burden of the Court, the Fifth Circuit in the Clay case.

Unknown Speaker: And that position, you don’t think is that the law of states that seems inconsistent with Alderman?

Mr. Mardian: I don’t see it as inconsistent with Alderman.

I think the facts in the Alderman Case were far different from the facts of this case.

In the Alderman case, as counsel pointed out, the surveillance was authorized for the purpose of obtaining prosecuted evidence to be used in the criminal case and it was directed against the defendant.

And as in that case, I would assume, I didn’t look at the record that there were literally box loads of electrically monitored telephone conversations.

In this case, we have a situation as in Clay where as I have said, the defendant unfortuitously or fortuitously depending on the outcome of this case happened to call the wrong number.

And I think the in camera examination would disclosed that fact.

Unknown Speaker: I take it from your brief you also argued that nothing in the Safe Streets Act precludes this kind of an argument?

Mr. Mardian: I would -- I hope to get to that and I would concur that it doesn’t.

I would like if I made a turn briefly to answer the assertion of lack of constitutional authority and I think in this regard we must recognized the constitution authority of the President must be gleamed for a reading of the entire Constitution itself.

And I should like if I may to address myself very briefly to the provisions of the Constitution which the Government deems applicable to this case.

Unknown Speaker: Before you -- let me ask you, do you rely on the Safe Streets Act at all as an authorization?

Mr. Mardian: Yes, sir.

Yes, Your Honor.

Unknown Speaker: And so that even if the President's absence of authorization by the Congress didn’t have independent constitutional authority to do this.

Your argument is the Safe Streets Act authorizes him to do so and the Constitution would permit the Congress to authorize them to do so?

Mr. Mardian: In the setting of this case I would rather argue, Mr. Justice, that we read the Constitution along with the statutory provision and that in itself would be sufficient for the presidential authority in this area.

I think absent -- the Constitutional Enabling Act or the Congressional Enabling Act that we would have a more difficult case but I think in that case as I hope to show the President would have to the constitutional authority in this limited area to engage in electronic surveillance for counterintelligence purposes.

I would like to point first the preamble of the constitution which sets forth the purpose of this republic.

One of the primary stated purposes in the preamble is to ensure to domestic tranquility.

The insurance of domestic tranquility we would submit involves an executive function as well as a legislative and a judicial function.

Article 2, Section 2, provides and that reposes the executive function of the United States in the President of the United States.

And Article 2 also requires that the President take an oath that he will do to the best of his ability preserve, protect, and defend the Constitution of the United States and I submit in this regard that the protection of the Constitution or the oath to protect the Constitution is not an oath merely to protect the document itself, but to protect the principles of under which the Constitution was adopted and the rights guaranteed by that Constitution.

Unknown Speaker: Do you think that argument helps you in this case?

Mr. Mardian: Yes, sir.

I think I would hope to show that it does.

In Article 2, Section 2 the Framers of the Constitution designated the President of the United States as Commander in Chief of the Army, of the Navy, and of the Militia of the several States when called into active service by him.

In Article 2, Section 3, enjoins the President to take care that the Laws of this Nation are faithfully executed.

Each of this we submit is an executive function.

This Court in entering Nagel and passing upon Article 2, Section 3 such stated and I would like to quote from that, “The President’s duty to take care that the Laws be faithfully executed extends not merely to the enforcement of specific Acts of Congress but to the enforcement of the rights, duties, and obligations growing out of the Constitution itself are international relations and all other protection implied by the nature of our Government under the Constitution.”

Article 4, Section 4 which is often times overlooked carries out the promise of the preamble of the constitution.

That Article provides that the United States shall guarantee to every State of the United States a Republican Form of Government and shall protect each of them against invasion and on application of the legislature or the executive when the legislature is not in session against domestic violence.

Now, I have previously alluded to Article 1, Section 8 of the Constitution which provides that Congress shall provide for the calling forth of the militia to execute the Laws of the Nation, to suppress insurrection and repel invasion.

Now as one of the briefs pointed out, this power is in Congress but Congress has exercised that power.

It exercised it in 1792 in the Second Congress.

It provided in what is now 10 U.S.C. 331, that the President could call the Militia of the several States in the Federal Service and authorizes him to use such force as he deems necessary.

And I -- this is a quote from the provision of the act, “As he considers necessary to suppress insurrection.”

This is an executive function reposed in the President of the United States.

332 provides that whenever the President considers unlawful obstructions, combinations or assemblages or rebellion against the authority of the United States, make it impracticable to enforce the Laws of the United States and in any State or Territory by the ordinary course of judicial proceedings, he may call into the service of the militia of any State and use such of the Armed Forces as he considers necessary to enforce those laws or to suppress rebellion.

Section 333 of 10 U.S.C. provides the President use the militia or the Armed Forces for both or any other means and “shall take such measures as he considers necessary to suppress in a state, domestic violence, unlawful combination or conspiracy that seriously interferes to the execution of Laws in the United States.”

We would submit in this regard that Article 4, Section 4 of the Constitution makes no distinction with respect to presidential powers as they pertain to invasion or domestic violence.

Now, we turn to the Omnibus Crime Control and Safe Streets Act of 1968.

In that Act, in Subsection 3 of 2511 there is this language, nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overflow by force or other unlawful means or against any other clear and present danger to the structure or existence of Government.

If there be any doubt as to what any other means as the phrase is used in that statutory provision, it is dispel by the next following sentence.

The contents of any wire or oral communication intercepted by the authority of the President in the exercise of a foregoing powers may be received in evidence in any trial or hearing or other proceeding only where such interception was reasonable and shall not be otherwise used or disclosed except as is necessary to implement that power.

We suggest, Your Honors, that in the exercise of this function by the President of the United States there is of course a discretion vested and whenever the discretion is vested there is of course the chance that the discretion will be abused.

But this is the very essence of our Government and I would suggest to the Court that at the time of our Continental Congress, at the time of the Constitutional Convention, at the time this very Constitution was enacted.

There was serious question as to whether or not this Court had the power of judicial review.

It was asserted at that time when this Court consisted of five members that a majority of that Court could, if it had the power of judicial review, substitute its judgment, for the judgment of both Houses of Congress and the people of the United States that elected him.

Justice Marshall answered the question but I think Alexander Hamilton answered it even more eloquently in the Federalist Paper Number 80 in which he said, “To argue that the members of the Court could substitute there judgment for the will of the people would argue that there ought to be no Court.”

Justice Thurgood Marshall: Another Justice by the name of Marshall solely took care of all that, didn’t he?

Chief Justice Marshall?

Mr. Mardian: Chief Justice Marshall, I believe answered the question in the same way.

If we look to the Constitution of the United States, I doubt if we can find one phrase or one word which reposes in the Court the power of judicial review.

But Justice Marshall found that it was inherit in the Constitution itself that this --

Justice Thurgood Marshall: You keep talking -- the Fourth Amendment?

Are you going to get to it?

Mr. Mardian: Sorry.

Justice Thurgood Marshall: The Fourth Amendment?

Mr. Mardian: We suggest in this regard that, we are not asking for an exemption of the Fourth Amendment.

We do not suggest the President is above the Fourth Amendment.

We simply suggest that in the area in which he has limited but the exclusive authority to the President of the United States may authorize electronic surveillance and in those cases it is reasonable.

I would suggest in this regard that the Fourth Amendment does not prohibit all searches and seizures.

But only those which are deemed --

Justice Thurgood Marshall: Is it possible under your theory that the President could make unreasonable intrusion into the private life of citizen of this country?

Mr. Mardian: I think that the abuse of discretion to which you will elude is possible not only in the executive function but in the judicial as well as the legislative.

Justice Thurgood Marshall: I'm not talking about the judicial point.

I'm talking about the executive.

Mr. Mardian: I think that –-

Justice Thurgood Marshall: And I understand your position that if the President decides as necessary to bug John Doe’s phone, that’s it.

There is nothing under the sun John Jones can do that.

Mr. Mardian: Within the limited procedures, prescribed by the statute under which he acts.

Now, if he chooses to violate that statute, he might well choose to violate his oath.

This is an attribute of our Government which exists and has always existed.

But I would also suggest in this regard that this is not an unbridled discretion.

We are here before this Court for the Court to examine whether or not in this case there was an unbridled discretion or an abused of that discretion.

If I may, Your Honor, I would like to reserve what time I have left for rebuttal.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Very well, Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Thank you.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Gossett.

Argument of William T. Gossett

Mr. William T. Gossett: Mr. Chief Justice, may it please the Court.

By designation of the State Bar and you know I am here to represent the respondent in the mandamus proceeding in the District Court of Michigan and Judge Keith of that Court.

Mr. Kinoy and I have made up a loose arrangement for dividing the argument here and that in addition to supplementing my argument on the main issue he will, I think, deal specially and specially with the matter of the Alderman decision.

We do not intend however to suggest or discourage any questions from the Court or from either of us on any point.

I want to come soon to the Government’s papers but not too soon because I am very clear on one thing the Government’s case has many infirmities, fundamental infirmities that go, that transcend the form of their papers.

There may have been controversy in this Court in the past about the scope and about the wisdom of the recognized exceptions to the warrant requirement but prior to this case, there has never been a serious challenge to the basic rule that ordinarily searches and seizures must be made pursuant to duly issued warrants and if they’re not, they are unreasonable.

Indeed, the Government for 40 years has admitted repeatedly that the fruits of electronic surveillance, the fruits of unauthorized searchers and seizures are not admissible in evidence to all during this period to which Mr. Justice Marshall referred when the Department of Justice was operating under presidential authority.

The Government admitted, during all that period, that the fruits of their searches were not admissible in evidence.

Justice Potter Stewart: Of course, during a great deal of that period Mr. Gossett, that was the regime of Amsted and of Goldman, was it not?

Mr. William T. Gossett: Yes sir.

Justice Potter Stewart: So that the problem was not a Fourth Amendment problem during the line of share -- that period or great deal of that period and in effect to -- what was involved was a provision of the Federal Communications Act.

Mr. William T. Gossett: Yes.

Justice Potter Stewart: Not the Fourth Amendment, am I wrong about that.

Mr. William T. Gossett: Which -- you’re quite right Mr. Justice Stewart and the -- under the interpretation of that Act by the Attorney General, the proscription was against disclosure and all the Attorney Generals admitted that the disclosure point that they could not disclose and if they disclosed the fruits, there was a violation of the Act.

But during of all of that period the Attorney General sponsored many Bills in Congress to secure the right to wiretap and all of those Bills where either defeated or withdrawn because Congress was concern about the definition of more power about national security and that they were afraid abuses and so, not until 1968 was legislation adopted that overrode the 1934 Act.

Obviously, this case -- in this case the Government does not claim that the electronic searcher falls within the -- in any of the recognized exemptions.

It seeks instead that it did in Katz.

A new exemption indeed, it seeks for all searches that the Attorney General may have characterized or may label national security, an exemption from any meaningful judicial supervision either before or after the search.

Thus, the Government in effect presents a startling proposition.

It is that also called national security searches and seizures are non-justiciable.

They simply are beyond the reach, beyond the competence of the Courts.

They are for the Attorney General, the Executive alone.

The wiretap here involved was ordered because and only because the Attorney General unilaterally determined that it was reasonable to gather domestic intelligence information deemed necessary as he put it, now I want be of clear about his language, to protect the nation from attempts of the domestic organizations to attack and submerge the existing structure of the Government.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: What use, Mr. Gossett, is the Government now undertaking to make of theses disclosures, if any?

Rebuttal of William T. Gossett

Mr. William T. Gossett: The Government claims in this case that the -- and claims that in all cases of national security Mr. Chief Justice, that the fruits of wiretaps secured in connection with so-called intelligence information gathering should be admissible of evidence in a criminal case, that’s our position.

And they -- they are -- they've set up here a conflict between the physical security of this country and the right of these defendants to privacy.

That's not the decision that the District Court made.

That’s not the decision that the Court of the Appeals made.

And that’s not the decision before this Court.

That’s not the question before this Court.

Their question before this Court is whether the Fourth Amendment is going to be protected, whether the protections of the Fourth Amendment are going to be respected, whether people are going to be protected against arbitrary power of Government.

That’s a decision that the Court of Appeals made.

And that’s a decision that we hope this Court would make.

In preparing his affidavit in this case, the Attorney General did not even comply with the statutory standard on which he himself relies.

Established by Congress in 1968, it says specifically not only in there main brief but then they have five briefs that is the standard.

Now, let me direct -- let me invite the Court’s attention if I may to the record here.

There’s some confusion, I don’t know how to define it.

I don’t know how the Court can be other than confused about the record in the case here.

May I direct your attention to -- I invite your attention to the page 3 of the main Government brief first.

This is what the Attorney General’s affidavit said about documents that after they say that the wiretap is applied to purpose I‘ve stated and then paragraph 4, submitted with this affidavit is a sealed exhibit containing one, the records of intercepted conversations; two, a description and let me explain that the lower court, let me be sure that you understand that lower court direction here is only that the Plamondon conversation be disclosed, nothing else, just a Plamondon which the Government says was fortuitous, he dialed the wrong a number, two, a description of the premises that were the subject of the surveillances; and three, copies of the memorandum reflecting the Attorney General’s expressed approval of the installation of the surveillances.

Now, next up let me suggest that we go page 9 of the Government’s reply brief.

They broaden the scope there a bit, they say, “Respondent District Judge urges that it complains about the standard employed here and that we can make the point that they haven’t complied with the standard” which we certainly do.

Now, I’ll come back to that, the affidavit however, says the Government was not authorization to the surveillance in response to defendant’s motion under Rule 16, affidavit was prepared and transmitted to the Court together with the in camera submission.

This submission contains: (1) The signed authorization of the Attorney General.

(2) Documents characterizing the illegal activities and names of the authorization in question including information relating to the means by which it intended to achieve its aims.

(3) A summary inventory of prior monitored conversations.

(4) A document relating to the previous authorization of the prior Attorney General.

(5) A description of the in premises involved in all overhearings of the defendant respondent Plamondon.

Those documents and not the affidavit are the proper basis for determining the ground of upon which the Attorney General acted.

Third, let us go to page 30 of the Government’s main brief if we -- if I may.

There's a footnote there after footnote 13 on page 30, defendant Plamondon was not the subject and so forth.

The next paragraph, we obliged with the clerk of this Court for it’s in camera consideration the same exhibit we submitted to the Court of Appeals for the Ninth Circuit in the Ferguson case.

This was aaddressed to this Court which involves the same issue as the present case and is now pending in the petition through for a writ of certiorari.

Now, that sentence ought to be read as carefully as it was written.

It does not say that the material in the exhibit was in the record of the Ninth Circuit case.

The fact is that it is not in the record of the Ninth Circuit case.

It was submitted to the Ninth Circuit and the Ninth Circuit we understand we are lively informed by former Deputy Attorney General who represented Judge Ferguson out there that that material was submitted by the Government.

They where requested to make a motion.

They made a motion.

The motion has not been decided.

So that material to which the Government -- on which the Government says that is relies for the authority, the Attorney General for the considerations that motivated the Attorney General.

Not in the record of this case.

Was not in the record of the Sixth Circuit and not in the record of the Ninth Circuit.

So how does it become material?

It's not available to us and let me point out that on page 8 of the reply brief of the Government.

They make some vague statements.

They have always taken the position.

They took the position in the -- in their affidavit, in their memorandum of law in opposition to the motion to suppress to the lower court.

They took the position in the Court of Appeals.

And they took the position in there petition for writ of certiorari in this case that the issue here was one of domestic security, domestic surveillance, domestic organizations.

Now, they say and this is as far as they go and this is as much as they say on page 8, the fact that an organization is domestic does not mean that its activities cannot involve foreign intelligence operations.

A domestic organization for example, may have a large number of significant foreign contacts in association that may influence, may have a large number, and may influence or they even call these domestic activities.

Similarly, individuals connect with the domestic organization themselves may have such foreign ties and then they go on to say, it’s a practical impossibility to find the distinctions such as organization unless one uses the principle of geographic size and so on.

The District Court did not consider this problem but granted decision on the fact that the organization is distinguished from the intelligence sought was wholly domestic.

The point is that, the argument was not made before the District Court.

It was not made in the Court of Appeals.

It is not made in the writ of certiorari to this case that -- and there -- and that there is no assertion now in any document, not even in this reply brief that this organization, this “domestic organization” it has foreign ties or is influenced by foreigners.

There's no such statement and so, I do not know how this Court can base its decision in this case on adequacy to papers on any such record.

Now if I may, I want to read the rest of the affidavit, the rest of the footnote on page 30 and 31 starting at the bottom at the bottom of page 30. We think these records demonstrates that any characterization of the organization in question is domestic, is in the Court of --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I have not found you yet Mr. Gossett.

Rebuttal of William T. Gossett

Mr. William T. Gossett: The -- it’s the main brief of the Government, page 30 and the footnote, last paragraph of the footnote beginning on page 30, Mr. Chief Justice.

We think these records demonstrate at any characterization of the organization in question is domestic is unsupportable.

For example, over a 14 month-period, 521 telephone calls were made from this installation, the foreign and overseas installations and another 430 calls, the contents of which deal with foreign subject matter replaced to domestic installations.

Now, that’s a sole basis for the Government’s claim for that -- there’s any foreign intelligence involves here.

And I -- who characterized that, it says any characterization of the organization as domestic.

Who characterized this as domestic?

Why, it's perfectly clear the Attorney General of the United States characterizes it as domestic and he is never in any paper stated otherwise, stated facts that are available to us as a basis for any other characterization.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I suppose there’s a risk Mr. Gossett in getting in -- tying ourselves down this semantics here.

How would you characterize a trade mission of a foreign country that was being used as a source of intelligence governing in this country?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Well, I think that it would then depend on the facts and circumstances and I think that’s the very purpose of the warrant requirement to set up those facts and circumstances, have counsel explain to the Court what the significance with other relations as where and have the Court perform its constitutional role to determine whether the -- an intrusion is proper, what to do extent of the intrusion and so on, all the requirements whether they're probable cause for the intrusion.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Well, that would mean probably if they were going to have surveillance of an embassy they would have to do the same thing in their view, is that correct?

Rebuttal of William T. Gossett

Mr. William T. Gossett: This Court has reserved expressly the matter of the power of the President in the foreign field.

We don’t have it involved here.

I think the President perhaps has extraordinary powers in the foreign field but even there, let me make a point if I may.

If I could ask you to turn to our brief, page -- in the appendix of our briefs.

We set out there Section 2511 (3) whereas consists in the appendix of the blue covered brief, we submit.

Its from the Omnibus Crime and Safe Streets Act of 1968, 2511 this language was obviously very carefully drawn and it appears in a statute that is very carefully drawn that for the first time in the history of this country abides for electronic surveillance with the Court Order and provides that in case of national security searchers and seizures, that the Government may proceed without a court order provided that within 48 hours after the surveillance starts they get a court order or apply for court order.

That’s the expressed provision of Congress with respect to National Security cases.

Now 2511 (3) nothing contain in this chapter or in Section 605, the Communications Act of 1934.

Now, we deal first I think with the foreign power, shall limit the constitutional power of the President to take such measures as he deemed necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities.

Three times that use foreign, the word foreign, foreign power, foreign intelligence information.

Now, the next sentence I think deals with the domestic side, nor shall anything contain in this chapter be deemed to limit the constitutional power of the President, to take such measures as he deems necessary same language, to protect the United States against the overthrow of the Government by force or other unlawful means or against any other clear and present danger to the structure or the existence of the Government.

Now, why I didn’t we -- quite aside from the facts that are not available to us?

Why could not the Government of the United States follow the prescribed languages with respect to domestic activities?

The word “intelligence” is not used but the word “force” and the words “unlawful action” and “clear and present danger.”

None of those words are used, have been used not only in the affidavit have been use any document in this case.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Gossett, suppose a foreign power, hostile foreign power or unfriendly foreign power engages, hires, employs people who lived here whether citizens or not and they engaged in this type of activity.

How would you think that they would be or how would you characterized them, as part of the foreign or part of the domestic operations?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I think if they were employed by the foreigners, they might be part of a foreign operation.

But let me --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Then they’d fall under the first part of the statute?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I think so.

I think so and the -- wherein the doctrine, Mr. Chief Justice about the facts, all we know is that the fact -- that the Attorney General said and said to the District Court and the Court of Appeals, this is a domestic organization, nothing about foreign activities and the most I have said is that foreign activities may be involved.

That in the domestic organization not this one but in domestic organization, foreign activities may be involved.

May I just read, I call your attention to the last sentence and that’s very carefully drawn paragraph.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You’re still on 28?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I'm still on the Appendix.

Yes, on 2511 (3).

The contents of any wire or oral communication intercepted by authority of the President, this was read by Mr. Mardian, right.

I read it differently than he does.

I see significance in it that he did not point out.

In the exercise the foregoing powers may be received in evidence in any trial hearing or other proceedings only where such interception was reasonable.

Now, and shall not be otherwise be use to disclose except if it is necessary to implement that power.

What does reasonable mean?

Well, the committee reports are quite clear on this subject.

They interpret reasonable just as this Court interpreted in Camara and in Katz and in Berger.

They say reasonable the test reasonable is a standard reasonableness shall be the probable cause test under the Fourth Amendment.

They make it very clear.

So when they use this -- the Congress used this language they meant that in a domestic situation if the Government expected to use the evidence -- the fruits of the electronic surveillance in evidence then they must -- it must be reasonably obtained and that means under the Fourth Amendment probable cause test.

They say, the Government says the Fourth Amendment does not prohibit all searches and seizures without warrant but only unreasonable ones.

The test for determining reasonable as they say is to weigh the competing interest involved and they then purport the balance of competing interest.

And they say, they find naturally, that the Government interest in protecting national security, the physical security of this country had ways the invasion of personal rights result -- resulting from the surveillance.

Of course, it ignores the essential second step in the procedure and as I say there is unfair weighing if they are weighing the national security against the rights of these three defendants.

But determination of whether search is unreasonable involved more than a weighing of the competing interest, the process must begin with to quote this Court in Camara, I never known that correct pronunciation, I hope it’s Camara.

One governing principles justified by history by current experience that is consistently been followed that except and certainly carefully defined classes of cases of search of private property without proper consent is unreasonable unless it had been authorized by a valid search warrant.

The warrant procurement is not merely one method of assuring reasonable search, it is crucial and it is generally indispensable.

Probable cause set in the Court in Camara is the standard by which the constitutional mandate a reasonable as it is tested and the burden, the burden is on those seeking an exemption from warrant requirement the show a need for it.

Not just a need to search but the need the search without a warrant.

Now, of course there’s a Governmental interests who would dispute.

There's a Governmental interests in protecting the fabric of society so as the Government puts in his brief.

But that’s not the interests as take in this case.

In Camara, as you recall and that almost identical argument was made in principle, “That the general health and safety of the entire urban population is dependent upon enforcement of minimum fire housing and sanitation standard.”

Then, thus it was claim at required systematized inspection of all physical structures about a warrant.

But as this Court noted the argument missed the mark.

The question knows not whether these inspections may be made but whether they may be made without a warrant and so it is in this case.

But the warrant procurement is no mere formality.

We agree with the Attorney General that the President is responsible for ensuring our system of Government as a viable entity.

Indeed his duty is even greater than that, greater and more formidable.

He sworn not to protect the Government as such but to preserve, protect, and defend the Constitution of the United States but his powers must be exercise and the need for information satisfied to a constitutionally proper means.

And the constitution limits the President even in his most awesome responsibilities that this Court has held in a number of cases and that we don’t subscribe to the inherent power of argument, the Government made it in the lower court and in the Court of Appeals that would do formatting its main brief in this case and now it seems to back to the inherent power of argument.

We think --

Unknown Speaker: How about the -- what if Congress made it clearly express the statutes said that the electronic surveillances shall be carried out only with a warrant but the warrant may either be obtained from the magistrate or from the President of United States and then this had been the particular case, the President issues what is called a warrant to presume the statute.

I find there's probable cause it is so and so.

He issues the warrant.

Mr. William T. Gossett: I think the Fourth Amendment contemplates and provided for judicial process Mr. Justice.

I don’t think that would be judicial process.

I think that what the Government -- what the generations of Americans were talking about formulated the Fourth Amendment was a neutral magistrate, a detached magistrate and the President is a political man and I don’t think, and so is the Department of Justice, (Inaudible) work for him.

They're politicians and they should not be given the power to determine how much and how long and how great will be the intrusion of private citizens in this country.

And that’s what the Government is arguing for in this case.

Unknown Speaker: You would say that would be unreasonable.

It’s unreasonable to trust part of the United States as much as you trust the District Judge?

Mr. William T. Gossett: I think so.

Unknown Speaker: Well, you’d say it doesn’t fit the constitutional definition of a warrant?

Mr. William T. Gossett: I think it does not.

Unknown Speaker: No matter how much you may trust the individual?

Mr. William T. Gossett: That’s right.

I may trust this administration.

I'm talking about a long over period.

Unknown Speaker: And a warrant -- a warrant within the constitutional meaning of that phrase is a matter of definition means that one issued by a neutral and detached magistrate.

Mr. William T. Gossett: This is Court has so held.

Unknown Speaker: Not by either one of the parties.

Mr. William T. Gossett: Yes, sir.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I take it when speak of the political branches, grants you would include the Congress in as a political branch as well as the executive?

Rebuttal of William T. Gossett

Mr. William T. Gossett: I would indeed accept that I think Congress has a power to set up standards from which the --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: But would you view, I take it to a degree or that would be your view that Congress could not issue a warrant?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Could not pass upon the standards that’s asked upon the facts, I agree.

Yes, sir --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: They define the standards but they couldn’t issue the warrant?

Rebuttal of William T. Gossett

Mr. William T. Gossett: Yes.

That’s our position and of course they have set up standards in the 1968 Act and I think that Act has gone a long way to solve some of the problems here.

And the Act deals with such crimes as espionage, sabotage, Presidential assassination, treason, all of these things that the Government says are unsafe for the courts to deal with.

They're too complicated.

They can’t deal with these matters but they must be dealt with the by executive and is -- in his great -- with his great wisdom and knowledge and background on this matter.

They must be dealt with by the executive.(Voice Overlap)

Well are you -- are you arguing Mr. Gossett that’s whatever the scope of inherent power prior to the 1968 Act.

If the 1968 Act has now spoken to this subject and controls, is that your argument?

Mr. William T. Gossett: So far as Congress is concern, it does, it has.

I think Congress has left open a couple of questions that with deference to the decisions of this Court and the position of this Court in certain cases.

But so far as securing wiretaps, wiretapping and intruding into the lives of private citizens in this country.

I think, Congress has spoken and it has stated the policy very precisely and elaborately.

The language was -- is very carefully drawn.

Thank you, Mr. Chief Justice.

Unknown Speaker: Did the -- before you sit down Mr. Gossett, is there -- did the District Judge look at this in Camara submission?

Mr. William T. Gossett: He did and I'm glad you answered that because he found expressly precisely that having looked at it that he could not make a determination as to the significance of it from a prosecutorial benefit point of view.

He could not make a determination.

Unknown Speaker: Is that on the record?

Mr. William T. Gossett: It’s in the record, it's a -- I'm sorry I don’t I have the page before me but the official citation is 444 F. 2d at page 668.

Unknown Speaker: And did the Court of Appeals look at it?

Mr. William T. Gossett: In Court of Appeals, yes.

630.

Pardon?

Unknown Speaker: Both the District Court and the Court of Appeals look at the --

Mr. William T. Gossett: No, the District Court made so much no such finding.

The Court of Appeals did.

Unknown Speaker: Yes, I see.

Mr. William T. Gossett: And that we don’t really know what was before the Court of Appeals.

We have one listed of documents as I pointed out.

Yes, I'll (Inaudible).

Thank you, Mr. Chief Justice.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Mr. Kinoy.

Argument of Arthur Kinoy

Mr. Arthur Kinoy: Mr. Chief Justice and members of the Court.

I rise before this Court to represent the three individual respondents John Sinclair, Lawrence Plamondon, and John Forest.

But as the Court of Appeals has stated so powerfully in the opinion before this Court, the thrust of this case now goes far beyond the rights and liberties of these three young men.

The Government has seen that to use this case as a vehicle for propelling a claim of executive power.

So ominous in its importation and sweeping in its dimension that is as transform this appeal into a case which as this Court has said touches the bedrock of our political system.

Mr. Mardian has seen fit this morning to call upon the authority of the Great Chief Justice in Mulberry.

I would suggest to the Court that in the words of that Chief Justice this case had become on of those rare cases of peculiar delicacy which call for the historic role of this Court as the ultimate interpreter of the Constitution.

Now, the considerations I suggest to the Court, awesome and foreboding which permeate the opinions of the District Court and the Court of Appeals arise out of an openly expressed and prime attempt by the executive to use this case to obtain the imprimatur of this Court for a program of domestic and I stressed that word, domestic espionage and surveillance of political opponents on Presidents in our history.

Mr. Gossett has exposed fully, I believe the essence of the executive’s claim of executive power to engage in wholesale wiretapping of American citizens without regard for the Fourth Amendment commands of prior judicial approval by a neutral magistrate.

The very point of the First Amendment -- of the Fourth Amendment which this Court has thought so recently in Coolidge, in Camara without a showing of probable cause or the necessity of particularity whenever in his sole and unchallenged judgment the ideas, associations or political activities of these citizens may constitute an attempt and here I used his words to subvert the existing structure of the Government.

Now, as Mr. Gossett has pointed out and in the words of Judge Edwards in the Court of Appeals for the Sixth Circuit, this would -- to place it bluntly, erase the Fourth Amendment from the domestic light of this country.

The Amendment which this Court has thought is the embodiment of fundamental principles of liberty.

But I would like to suggest to the Court that the most serious consequences which would flow from this Court’s placing its imprimatur upon this claim of power would be the stifling of the political freedoms guaranteed by the First Amendment, the continued vitality of which rests.

It’s been great deal of discussion today about the security of the Republic and the security of this Government.

Well, Mr. Mardian did not include in his discussion to the Court, the deepest teachings of this Court that the security of the Republic basically depends upon preserving the essence of this system of political freedom, those great words of the Chief Justice.

Justice Hughes in De Jonge, preserving the essence of the political freedoms of the country.

Now the fear or the excessive and uncontrolled executive power which permeates the Court of Appeals’ opinion and the opinion of the Respondent District Judge, the fear of this power, to sweep aside Fourth Amendment protection against what?

Against warrantless general searches and seizures.

I suggest to the Court that not since the days in 1761 when the Board of Massachusetts Court, James Otis pleaded a case as a more classic general search ever come before this Court.

Here you have a search of 14 months duration by the Government words, 14 months duration over 900 telephone calls involving, Lord knows how many thousands of people who as Mr. Gossett said by mistake dialed a number.

Now, this fear which is reflected in the Court of Appeals opinion of this unprecedented in his power is based not only on the contemporary European lessons of tear news this country is not supposed to be reflect but is based I suggest on the most important of our own experiences as a people.

That the central teaching of our own history has been that arbitrary general searches and seizures always, not always and that is the teaching and the meaning of the essence of our experience of the people is the pact to the assertion of theoretical control over the lives of people and this I suggest to the Court, is the brilliant heart of the Court of Appeals’ opinion which is here for review by this Court.

The concepts of the Court of Appeals that beyond doubt, the First Amendment is the cornerstone of American Freedom and the Fourth Amendment stands as the guardian of the First and this reflects the teaching of this Court in Marcus, that the Bill of Rights itself, the Fourth Amendment was fashioned against the background of knowledge that unrestricted power of search and seizure was an instrument for stifling liberty of expression.

Now the power which the Attorney General seeks here, would legitimatized a widespread dragnet of a secret surveillance of domestic political opposition of which the present record Appendix A to our brief for example is but a tiny preview already the subjects of the Attorney General’s suspicion and I used that word advisably for on leaders of the Anti-war Movement, Black Militant, Catholic Activists, pacifists, Advocates of Youth Culture but what is the deep danger to the country that this claim represent.

As formulated here this morning and in the brief submitted to this Court, that claim of power can include anyone who speaks out.

Now, I put it bluntly to the Court that this is not an exaggeration.

I put to the Court the example of the reason suggestion from high quarters in the executive department that critics of the proposals made by the President of the United States in respect to the Vietnam War and I used their own words, are consciously aiding and abetting the enemy of the United States.

That was the Chief of Staff of the White House two weeks ago.

Now, I suggest to the Court would these critics be included within the scope of this domestic surveillance.

They’re aiding and abetting the enemy of the United States during there phones can be tapped.

Now, I would say to the Court that the question asked by this Court in Baggett-Bullitt, where does principle possibility end and intended coverage begins goes to the heart of this issue.

Goes to the heart of this issue unless this program now loudly proclaimed by the executive of uncontrolled executive warrantless open ended wiretapping of domestic political opponents unless this is decisively repudiated.

Not sidestepped and I urge deeply decisively repudiated by this Court, the inevitable effect will be not to -- and here I pause for a moment, I will not use the word which I heard the Solicitor two days ago before this Court say, “Was overworked in this Court.”

I will not say that the inevitable effect will be to chill the exercise of democratic right.

I would say the inevitable effect will be to choke and stifle.

The exercise of First Amendment rights by millions of American citizen, millions of American citizens and I call to the Court’s attention the poignant and incisive discussion of Judge Kiley of the Court of Appeals in the Seventh Circuit in his fascinating article, Private in Black Standard, which he warned us all.

Speaking of this pattern and danger of surveillance, that it seems enough to contemplate this specter of a big brother observing how we think, we feel and act and the oppressive, moral and political climate they were tend to suffocate our freedom.

Now, to me the most disturbing aspect of this case is the frank willingness of the executive to engage in such a program and in its eagerness to sustain such a program, the executive attempt to evade the prohibitions of the Fourth Amendment.

The question Justice Marshall asked from the bench to Mr. Mardian by saying as -- Mr. Mardian said here this morning that this program of domestic political espionage is unrelated to any criminal investigated activity but is merely unintelligence gathering operation.

But what Mr. Mardian does not discuss is that attempt to evade the protections of the Fourth Amendment was repudiated by this Court directly squarely and head on in Camara.

When the opinion of the Court, Justice White’s opinion of the Court, met head on the argument there made by the state authorities that we're not involved in this Fourth Amendment problem because our intention is not to look for criminal violations, we're looking for other things.

Go to the health and safety of the community and this Court said that that misses the whole point and what did it do in the fascinating way.

The majority opinion according to Camara adopted approvingly the dissenting opinion of Justice Brennan in Abel, Abel against United States in which the justice pointed out and reflected in the Camara opinion.

That this misses the whole point of the Fourth Amendment that the right protected by the Fourth Amendment is not the right to be secure from having evidence of criminal activity taken from you unreasonably.

That’s not the right to protect it.

The right to protect it is to use again the words of these Court again and again.

The sacred inalienable -- the right that used in Boyd, the words in Boyd, the words of Justice Brandies in Olmstead, the absolute right to privacy.

That the issue is not, why that right is being violated?

The Fourth Amendment stands to protect the citizens of this country from arbitrary invasion of there right.

It stuns me a little bit to hear the arguments made by a Representative of today’s executive which were made by the Representatives of George the III in Entick against Carrington, the precise argument.

This Court is told as was the British Court in Entick that courts cannot look at the reasons for the searches.

That resides in the special knowledge of the crown.

The British Court was told in Entick, you must sanction this general search for -- and neither words from Entick for reasons of state, for reasons of necessity.

No, we cannot tell you all the facts of those because they reside in the head of our Chief Executive Officer known as the Secretary of the State.

Those were precisely the arguments raised in Entick.

Those were the arguments, the Fourth Amendment was designed to eliminate.

Mr. Mardian’s argument is not with us.

Mr. Mardian’s argument is with those who wrote the Fourth Amendment.

Mr. Mardian’s argument and the Government’s brief reads as if saying that, “Oh, it is perfectly alright.

We can do all these things because we are conducting investigative intelligence gathering as if the executive has limitless uncontrolled powers in the area of political association belief and activities.”

All of which as this Court towards in Stanford, all of which are affected by the general searches conducted here, as if the general searches because the Government there -- the general executive, I think it is important for us to be precise in our language here.

I prefer not to use the term, "The Government" here, the issue was too profound and too serious.

The executive says that if these general searches are conducted unrelated to the purposes of immediate criminal prosecution then we can do whatever we like.

In the vast area of political association believes in activity we can have whatever wiretapping we want to have there.

It doesn’t matter what effect it has on people’s willingness to engage in political activity, on people’s willingness to engage in political association.

I suggest that this Court has thought and only recently as reaffirmed the profound words which this Court now has written into fundamental law of Justice Brandies concurring in Whitney against California, only recently in Brandenburg with this Court write those words into the fabric of our law, that Government action which impinges on the delicate and vulnerable freedom.

The words of -- but is tolerated if at all only when required to prevent the most eminent immediate serious role attraction of a clear and present danger of a substantive evil of a serious nature within the power of the Government.

But the argument of the executive here is a total rejection of Justice Brandies’ philosophy and the philosophy, I suggest of this Court and the philosophy of the Constitution of the United States which Mr. Mardian has told us the President is one to uphold.

Because the executive now demands the power for general searches in the area of domestic political activity in the absence of any showing of probable cause for criminal prosecution on the uncheck say so of one man and we were told this morning that the absolute sacred privacy right to the American citizens are best protected in the hands of a one man.

Now, those who wrote the Fourth Amendment did not agree with that.

And that -- this Court said in Coolidge just last term.

Those fundamental values are sometimes question these days.

This Court said, sometimes people feel that these values, they don’t work.

And the Court pointed out that use the words, feel of internal subversion.

Sometimes makes us shake about these values but that’s what this Court seeks here for is to protect those fundamental values.

Those judgments were made when the Fourth Amendment was written.

Now, I suggest to the Court that no program of Government activities which touches the area of the First Amendment Right has ever come before this Court for review which so totally ignores the most elementary teachings of the Court.

Examination of the Attorney General’s affidavit, perhaps the most imprecise, overly broad, vague, dragnet type standard, words ever brought before the Court.

Compare it to the words sanctioned in governmental actions struck down in Baggett-Bullitt, struck down in Cramp, struck down in the issue.

This Court says that when Fourth Amendment problem touches the First Amendment, in the Stanford, precision and strict formulations are required.

This is -- has reflect precision, strict formulation.

Now, I can understand why the Government is so desperately trying in this Court to bury the Attorney General’s affidavit as the basis for there action upon the psychic’s pricing from a litigation point of view, from an elementary thinnest point of view that the first time the executive takes the position that the Attorney General’s affidavit is not what you look to define the basis for the search.

The first time they took that position is in the reply brief we got five days before this oral argument.

You look back to their main brief, go back to the original brief filed in the District Court that Judge Keith acted on.

Go back to the brief filed in the Court of Appeals to the Sixth Circuit and then what’s so interesting, recently we argued in the Seventh Circuit the identical issue with other representatives of the executive in United States against Dillinger and in the Seventh Circuit, the representatives of Department Justice got up and said, when question from the bench as to what's the basis for the searches.

They all look at the Attorney General’s affidavit Your Honor.

No!

In this Court now they’re running from that affidavit.

It's perfectly clear why they're running from the affidavit.

Cause the affidavit on its face reveals the fundamental violation of the First and Fourth Amendment.

But in one sense there is something deeply serious that is reflected by their running from the affidavit.

Now these five days prior to argument, the citizens are not even allowed to know the basis for the depravation of fundamental right.

What are we told?

No, you cannot look at the Attorney General’s affidavit any longer.

That’s not the reason for the right and what kind of limit in judicial review can there be if the citizens doesn’t even know.

Forget about the facts underlying the action.

It doesn’t even know what the basic for it, the claim of right to set aside Fourth Amendment right.

What are we told?

That basis is in secret document which in a magic way seem to enlarge as this case goes on -- the documents before Judge Keith.

Then all of a sudden there is supplemental envelops before the Court of Appeals.

Then all of a sudden there are new envelops filed before this Court and here they’re not so secret these envelops.

What’s in them?

Because whenever it suits the executive convenience they tell us and the Courts openly, publicly what are in them, but for the first time today, they were astounding to me.

For the first time today, we were told in this litigation that in these envelopes there is a memorandum from the head of the Federal Bureau of Investigation discussing prior wiretaps and prior surveillances.

We never heard that before?

Well, if that was so secret that it can now be discussed and openly before this Court, why weren’t we told a long time ago?

But what emerges is that if the bases for the deprivation of fundamental rights are in the secret documents which we don’t know and we can’t see, which we can’t even challenge, I suggest that we have a right.

Now in 1972, we’ve already run in 1984.

Nothing could be more (Inaudible).

Nothing could be more grotesque.

In the situation in which we don’t even know what the basis for the deprivation of fundamental rights.

What does this do?

It makes a mockery of any pretense of judicial review, supposedly a safeguard.

Now, I would suggest that if sanctioned by this Court, this warrantless general wiretapping of domestic and I stress that.

There is no question here of the so called foreign intelligence exception discussed in Katz, discussed in Giordano.

This was not supposed to be a test case from the Government’s point view from the executive’s point view of the so called foreign exception.

They allowed the -- from one into the country of the Attorney General’s big speeches in which he talked about this case, which he said they are testing the domestic, their right to have domestic surveillance of so called domestic subversion.

All of a sudden they discovered they run very shaky constitutional grounds.

So at the last moment, they tried to infect this case with an inference of foreign affair.

Why suggest to this Court that it is not so difficult to disentangle one from the other?

That this throughout the history of this country have been the sorts of the most serious eroding, the most serious eroding of constitutional liberties, at every turning point in the history of a nation where there’s been a challenged to fundamental constitutional liberties, it has always been in the name of foreign agent.

When the first attack on Jefferson and the Jeffersonion submerged, what was it?

They were French Agents.

And therefore Alien Position Act was alright.

First, you study the First Amendment.

Pull them in trial for sedition, why?

Because they were French Agents, foreign agents.

This Court is well aware of the same development around the promenades and the members of this Court was the author of that famouse document practically with the Department of Justice, Justice Frankfurter.

Pointing out, there once again end of World War I, the fear of foreign nation was the thing that intermingled into a cover to destroy, what?

Constitutional protections for American citizens, for American citizens, and this Court has lived through and proudly emerged from the period of time we all know as the period of the McCarthy period.

The period in which once again the fear, the fear, the cold fear of foreign, foreign elements was used.

Why?

To undermine the Fifth Amendment, the present Solicitor General of the United States wrote an important document on the erosion of the Fifth Amendment during that period of time.

I suggest we face that problem once again and this Court as it did at each turning point in our history must stand resolute now to reject this effort to introduce the specter of this fear which erodes the fundamental rights of all Americans, not just to three young men before this Court.

I think the serious need of what the executive is asking for is reflected in the constitution of theory which it now emerges full blown.

The theory that in the domestic area, there is an inherent power to do whatever the executive feels is necessary to be done.

I will not take time with this because this Court has over and over again rejected that concept only this last June in New York Times in a powerful opinion of the late Justice Black.

That doctrine which this Court at the end of the civil war called the most pernicious doctrine in ex parte Milligan, the most pernicious doctrine that the executive do with inherent powers can watch suspend constitutional guarantee.

That’s what they’re asking for here.

The power to suspend constitutional guarantee because they say.

No, this is not the system of Government which was created in this country.

The system of government which is created in this country is that system of limited powers.

Yes, it may not work as well as Justice Frankfurter pointed out in Youngstown, may not work as well as some other Government.

Can be more efficient, the oppressive button in another Government you have to worry about warrants, you don’t have to worry about courts, do what you want to do but that’s why this country was set up in the way it was and that’s why this Court sits.

Precisely, to protect this country and the citizens of this country from the erosion of the fundamental constitutional values which make us strong and safe.

I have exhausted my time.

I would like to say one word if I may just, one word on the last question which the executive has raised here in respect to the Alderman case, the Alderman opinion.

I was rather surprised to hear the representative of the executive say that what they are asking for in there brief is consistent with Alderman that I would not argue that.

It’s right in their brief.

They ask this Court to reconsider Alderman.

They ask this Court to overrule Alderman.

They ask this Court to throw out its decision of three years ago.

Well sort out, well reasoned and the thing that settles the inappropriateness of that request at this moment is the question the Chief Justice asked earlier and that is, that the Court of Appeals itself in looking at these lots and the Court will be aware of that at the end of he opinion said, it is impossible for us to say in looking at this very conversations that they might not have been prosecutorial benefit, and therefore it has to be adversary hearing.

So that I suggest that this Court should affirm the decision of the Sixth Circuit and in affirming the decision of the Sixth Circuit, this Court will be affirming the Fourth and the First Amendments of the Constitutions of the United States.

Thank you, Your Honor.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Thank you, Mr. Kinoy.

Mr. Mardian.

Rebuttal of Mardian

Mr. Mardian: Mr. Chief Justice and may it --

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: If you need it, we will enlarge your time about two minutes.

Rebuttal of Mardian

Mr. Mardian: Pardon me.

If you need it, we’ll enlarge your time about two minutes.

Perhaps you won’t need it.

Mr. Mardian: I don’t think I’ll need it.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: You have 18 minutes.

Rebuttal of Mardian

Mr. Mardian: Yes, Sir.

I should first like to allude to the statement by Mr. Justice Stewart with reference to a constitutional definition of the warrant.

I am unaware of any constitutional definition of a warrant as such.

I think the constitution speaks of a warrant this government has recognized numerous types of warrants.

I think in footnote 13 of our brief, in our reply brief.

We indicate and this was not intended to be a comprehensive search, 20 instances where the Congress of the United States has provided for either warrantless searches or searches conducted under warrants issued by persons other than members of the Federal Judiciary.

Counsel have cited the case of Abel versus the United States.

In fact, we urged the Abel case in the Sixth Circuit Court and is interesting to note that the Sixth Circuit Court when referring to Abel stated that Mr. Abel was arrested by a warrant which the opinion of the Court found to have been lawfully issued by a lawfully authorized magistrate and that the material seized at the time of his arrest were held legally admissible as incident to that arrest.

A decision in that case was written by Justice Frankfurter.

The warrant was not issued by a magistrate.

The warrant was issued by an Officer in the Department of Immigration and Naturalization Service, a subordinate of the Attorney General of the United States.

I would suggest in this regard that while the warrant requirement as it pertains to judicial proceedings criminal judicial proceedings especially by enlarge are issued by members of the federal judiciary.

There is a great body in statute in this country which permits not only warrantless searches which we've alluded to in some of our briefs but warrants issued by persons other than judicial magistrates.

Unknown Speaker: Mr. Mardian, you -- I thought you referred us to footnote 13 of your reply brief and I can’t find it.

Mr. Mardian: Pardon me, it’s in the main brief (Inaudible).

Unknown Speaker: And it’s not in footnote 13 of your main brief that I see.

Perhaps I've missed something.

I do not want to -- I know your holding your time.

Mr. Mardian: I may have put those wrong, sir and I'm sorry if I have.

Unknown Speaker: I just can’t locate what you're trying to --

Mr. Mardian: But I could recite the 20 instances.

Unknown Speaker: No, don’t do that.

I would be interested in where in this brief afterwards, if you did submit it though.

Mr. Mardian: Yes, sir.

I'm sorry.

Unknown Speaker: That’s perfectly alright.

Justice Thurgood Marshall: Mr. Mardian, in all of these instances of other people issuing warrants.

Aren’t they all subject to judicial testing?

Mr. Mardian: I -- on the writ of habeas corpus which I believe was the --

Justice Thurgood Marshall: I didn’t say on any writ.

They're subject to judicial testing?

Mr. Mardian: Yes.

There is -- they are subject to --

Justice Thurgood Marshall: In your position, in the judicial testimonies and adversary proceeding with two parties, is that correct?

Mr. Mardian: The judicial review, I would say based upon the warrant requirement in each case.

Justice Thurgood Marshall: And isn’t there an adversary proceeding?

Mr. Mardian: Yes, sir.

Justice Thurgood Marshall: But here we don’t have an adversary proceeding.

Mr. Mardian: Well, in this regard I was interested in the statement by Mr. Gossett in which he says that he is in dark as to the contents of the in camera exhibit.

Mr. Gossett represents the respondent court and the respondent court certainly had in its possession and that in camera exhibit shouldn’t have been available if it wasn’t to the attorney for the respondent court as distinguished in the respondent -

Justice Thurgood Marshall: I understood that in camera made for the eyes of the judges nobody else.

Am I right or wrong?

Mr. Mardian: We have in the past and I think before this Court not too recently submitted to this Court in camera and to the attorneys for the parties in that case it was not a Federal District Judge but the defendants in the case itself.

Justice Thurgood Marshall: Well, did you at any time after this case sought.

Did you tell Judge Keith that he was -- could show it to them or not?

Mr. Mardian: No.

We never told him he couldn’t.

Justice Thurgood Marshall: Well, where could he infer you had the right to?

You told that this is for your inspection only.

Is that what he said?

Mr. Mardian: I would assume that at the time this matter came before this Circuit Court at least and before this Court, when Mr. Gossett became counsel of record had to --

Justice Thurgood Marshall: Well, let me ask you now.

Can Mr. Gossett see it now?

Mr. Mardian: Yes.

Justice Thurgood Marshall: Can we see him now?

Mr. Mardian: Yes, sir.

He may see it.

Yes, sir Mr. Justice he may see it now.

Justice Thurgood Marshall: So why are they here under seal?

Mr. Mardian: The contents I presume are known to or should be known to Justice, I mean, Judge Keith and we have no objection to Mr. Gossett’s viewing the in camera exhibits.

Justice Thurgood Marshall: Mr. Keith -- both of the lawyers.

Mr. Mardian: Mr. Gossett who represents the respondent court is certainly --

Justice Thurgood Marshall: But the only lawyer can see it.

The lawyer representing the people involved can see it?

Mr. Mardian: Well, there only -- there's only one person involve contrary with counsel statement.

The only overhearing that we have is the overhearing of the defendant Plamondon.

The other two are here before this Court only because --

Justice Thurgood Marshall: The one whose name is Plamondon.

Mr. Mardian: Plamondon, yes sir.

Justice Thurgood Marshall: Can his lawyer see it?

Mr. Mardian: No.

The Government’s positions which initiated --

Unknown Speaker: Would have an adversary proceeding, wasn't it?

Mr. Mardian: Well, we would not having adversary proceeding in any instance where the overhearing involved matters relating to the national security.

If there is a distinction between overhearings in so called foreign intelligence cases as distinguished from national security cases, I have been unable as objectively as I can to do distinguish between so called domestic and foreign intelligence.

Now, counsel brought up the fact that in one of our footnotes we referred to some documents which we submitted to the Ninth Circuit Court of Appeal on our motion to augment the record.

That case came up -- was tried before the Keith case.

That -- that’s the Ferguson or Smith case.

In Mr. -- Judge Keith’s opinion, he refers in extensile to the opinion of Just -- Judge Ferguson.

In the way matter arose was this, in the Smith case which is still pending before this Court, I understand.

We made an in camera submission to the Court and I believe that in camera submission consisted a one sheet of paper which again was an incidental overhearing of the defendant Smith.

We urge in that case that it was national security intelligence tap and I think the record will disclose that it's the same tapped that is before this Court.

In that case, we urge that the information contained in the log should not be disclosed and its disclosure would not be in the interest and would be prejudicial to the national security.

We did not argue in that case nor was the question raised by the Court or by the defendant that that case involved a domestic intelligence case.

Yet, in the determination of the Court in the Ninth Circuit case, Judge Ferguson, he held that the Government was required to disclose again as a prelude to attain hearing.

The overhearing on the grounds that and he used the term 13 separate times, purely domestic or wholly domestic organization or purely domestic or wholly domestic intelligence.

And yet the only basis for the fact determination was the in camera submission of one sheet of paper which indicated the overhearing of the defendant’s Smith’s voice.

For that reason when the matter went before the Ninth Circuit, the Government sought to augment the record and to let the Court view all of the overhearings of the surveillance in question to determine whether it was in fact wholly domestic or purely domestic or whether it was a wholly domestic or purely domestic organization.

An examination of the logs will disclose that it’s not wholly domestic or purely domestic.

Its foreign ties exceeded its domestic ties and it was for that reason that we made that offer to the Court in the Ninth Circuit.

And we would make that offer to this Court, if the Court would like to view the record which we submitted in that case.

Now, with reference to why we footnoted the reference to the Smith case, that footnote, that brief was drawn at the time that Judge Ferguson sought a petition in this Court for certiorari before the determination in the Ninth Circuit and we acquiesce in that petition and sought to have this Court, hear both cases together so that this Court could view the in camera submission which was made at the Circuit Court level stage.

I take and I must take some exception to the characterization of this case as an attempt on the part of the Government to engage in electronics surveillance for the purpose of observing the activities of decedent political groups.

The statute under which this Government is operating certainly prohibits that.

I would also point out that this whole question of electronic surveillance in what is disclosed.

This Court must is a coordinate branch of Government rely almost entirely on the integrity of the executive branch.

The executive branch, it was the executive branch through the then Solicitor General who now sits on this Court, who made the disclosure to this Court.

And in each instance, where a motion is made under Rule 16, it is the integrity of the Government that has to be relied upon unless this Court is going to fashion a rule which would permit every defendant to rummage all of the files of all the investigative agencies of Government.

Now administratively, we suggest this cannot work.

Administratively, it would break down the separation of powers that exist between Government and would also break down the entire law enforcement function of Government.

Where do we go less than that?

When the motion is made, the Government responds.

If the Government is not to be trusted to respond with respect to a motion under Rule 16, then it should be expected.

I assume from what counsel said to respond honestly with respect to the nature of its activities.

Now certainly, this neither President or any prior President to my knowledge is authorized electronic surveillance to monitor the activities of an opposite political group.

The only purpose is -- as I have stated; one, to obtain the on going intelligence necessary to compete in the area of foreign affairs and the on-going intelligence necessary for this nation to protect itself against not only as foreign foes but its domestic foes.

Now, Counsel Gossett has suggested that we might in this area you use the provisions relating to cases involving sabotage or espionage.

I would submit that if it were a sabotage case or an espionage case, we certainly should invoke the provisions of the statute.

But when we’re talking about the on going intelligence function of Government, there is no probable cause in many cases as that term is used in the criminal prosecuted sense.

Now, I do not know that it’s an appropriate analogy but certainly the protection of the President of the United States against assassination is one aspect to the nation’s national security.

Heads of State have been assassinated to bring down Governments.

A simply -- simple cursory examination of the Warren Commission report will find, will disclose numerous instances by the Federal Bureau of Investigation and the Secret Service were criticized for not having the on going intelligence necessary to provide adequate protection to the President.

I suggest again with respect to the provisions of Article 4, Section 4 of the Constitution which the Congress has -- execution of which the Congress is placed in the President.

There is no distinction in the constitutional article or in the statutes passed pursuant thereto with respect to the presidential authority as its relates to invasion or civil insurrection.

Both require on going intelligence because without that intelligence, the President cannot make an appropriate decision.

As the Court held in the Kennedy case, constitution isn’t a suicide act.

The President can’t wait until the moment of invasion or insurrection to start putting together a counterintelligence function.

The President must have this information if he’s to carry out his responsibilities under the Constitution.

To defend this nation against invasion or domestic violence and we submit that the record of the past six Presidents and the past 12 Attorneys General is deserving of the high esteem of this Court, is deserving of permitting the Chief Executive to carry out his functions under the constitution and within the constraints of the Fourth Amendment as I have attempted to define them here.

Thank you, Mr. Chief Justice.

Justice Thurgood Marshall: Excuse me, Mr. Mardian.

Mr. Mardian: Your Honor.

Justice Thurgood Marshall: There is a question about Mr. Gossett, seeing this -- reading from page 21 of the record.

Accordingly the sealed exhibit referred to herein has been submitted solely for the Courts in camera inspection.

Does that change your mind?

Mr. Mardian: No, sir.

Justice Thurgood Marshall: Well, that’s Attorney General’s affidavit.

That was the Attorney General said.

I am giving it to you Judge Keith solely for you in camera inspection.

Mr. Mardian: This was before the petition for writ of mandamus was filed and before Judge Keith was represented by Mr. Gossett.

As we have in all cases to my knowledge and as we did before this Court in the times in the post case.

We permitted an examination not by a member in a case where a judge wasn’t involved but by not one but several four members or so.

Justice Thurgood Marshall: Do you think that a judge reading that would be free to turn it over to anybody else?

Mr. Mardian: I think if there is an -- if there is a misunderstanding in this case, it was not on the part of the Government, had the request been made most assuredly.

Justice Thurgood Marshall: I understood you to say you were showing Mr. Gossett had seen it?

Mr. Mardian: I had assumed that he had seen it.

I had assumed it.

Justice Thurgood Marshall: You still make that statement after this?

Mr. Mardian: No, sir.

If Mr. Gossett says he hasn’t seen it, he hasn’t seen it.

But had Mr. Gossett requested the opportunity to see the in camera exhibit, Mr. Gossett replication is such that who would be no question if the Government acquiesce on that demand.

Unknown Speaker: Mr. Mardian the record has been made here today to wholesale use of this type of surveillance indicating that it had been sharply on the increase.

Mr. Mardian: Yes, Mr. Justice.

Unknown Speaker: What are the actual facts with respect to whether or not it is currently and in recent years has been use more frequently than five years or ten years ago?

Mr. Mardian: I recently responded to a letter from Senator Kennedy of Massachusetts and I set forth the actual figures that the Department of Justice had with respect to electronics surveillance, the Director of the FBI, Mr. Hoover testifies annually during his budget hearings and will be testifying within the next week into as to the extent of electronic surveillance.

I can say without qualification rather than it is being increased that there has been a substantial decreased in the amount of electronic surveillance in the area in which we are speaking.

That is a matter within the knowledge of the Executive Branch of the Government and when requested we have disclosed on some occasions of the --

Justice William O. Douglas: I’ve been trying to get the figure -- I have read in a paper test here at this case.

A letter from Senator Kennedy to somebody, some other Senator and I am unable yet to get the figures that he quote, would you -- are you going to supply that?

Mr. Mardian: Yes, Mr. Justice.

Justice William O. Douglas: The problem is not on secrecy, the problem is one of that the Judiciary Committee hearings are not promptly printed and distributed.

Mr. Mardian: We consider this matter as did the Committee of the Privy Council of England as to how often you should distribute the figures.

Certainly, if the figures are disclosed on an on going basis of information relative to the intelligence function of Government can be gleaned.

But we did on that occasion in response to Senator Kennedy give him the figures that indicated the total number of surveillances for the entire year, the maximum number at each time.

You get into this numbers game Mr. Justice and you get -- you have problems because we, in our brief in the ninth -- in the Sixth Circuit and the Ninth Circuit as well, indicated the figures, the testimony of the Director of the FBI before Congress over the past ten years and those figures were as of the day he testify.

The figures I gave Senator Kennedy were the actual figures which we have in the Department of Justice and included not one a particular day which happened to coincide with Director Hoover’s testimony but the maximum number on any day and the total number for the entire year both as to telephones and microphones.

Justice William O. Douglas: Some of this information is set forth in footnote 10 of page 27 as I recall at your brief.

Mr. Mardian: Yes, sir, that -- those are the figures testified to by the Director and the only purpose was to show the decreased.

We were not intending to indicate anything other than the fact that they had decreased over the years.

I believe in one of -- I believe there has been references as Justice Douglas said to a letter from Senator Kennedy, the letter was to me, I believe, Senator and I responded.

Justice William O. Douglas: No, this was a letter to another Senator, I forgot who that Senator was, but I can probably get this on my own if you’re not willing to.

Mr. Mardian: I said I would supply them.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: I understand that you will supply a copy of that letter, we will probably do it.

Rebuttal of Mardian

Mr. Mardian: Yes, Mr. Chief Justice.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Very well.

Rebuttal of Mardian

Mr. Mardian: Thank you very much.

Rebuttal of Mr. Chief Justice Burger

Mr. Chief Justice Burger: Thank you Mr. Mardian.

Thank you, Mr. Gossett.

Thank you, Mr. Kinoy.

The case is submitted.

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