GELBARD v. UNITED STATES No. 71-110.
408 U.S. 41 (1972)
GELBARD ET AL. v. UNITED STATES.
Supreme Court of United States.
Decided June 26, 1972.
Michael E. Tigar argued the cause for petitioners in No. 71-110. With him on the brief was Burton Marks. Mr. Marks filed a brief for petitioner Gelbard in No. 71-110.
Deputy Solicitor General Friedman argued the cause for the United States in both cases. On the brief in No. 71-110 were Solicitor General Griswold, Assistant Attorney General Petersen, Allan A. Tuttle, and Beatrice Rosenberg. On the brief in No. 71-263 were Solicitor General Griswold, Assistant Attorney General Mardian, Mr. Tuttle, and Robert L. Keuch.
Jack J. Levine argued the cause pro hac vice for respondent Egan in No. 71-263. With him on the brief was Charles R. Nesson. Bernard L. Segal filed a brief for respondent Walsh in No. 71-263.
Melvin L. Wulf, Sanford Jay Rosen, Thomas Harvey, and Laurence R. Sperber filed a brief for the American Civil Liberties Union as amicus curiae urging reversal in No. 71-110 and affirmance in No. 71-263. Frank G. Carrington, Jr., and Alan S. Ganz filed a brief for Americans for Effective Law Enforcement, Inc., as amicus curiae urging reversal in No. 71-263.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
These cases present challenges to the validity of adjudications of civil contempt, pursuant to 28 U. S. C. § 1826 (a),
No. 71-110. A federal district judge approved wiretaps by federal agents of the telephones of Perry Paul, an alleged bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas casino. In the course of those taps, the agents overheard conversations between Paul and petitioner Gelbard and between Zarowitz and petitioner Parnas. Petitioners were subsequently called before a federal grand jury convened in Los Angeles to investigate possible violations of federal gambling laws. The Government asserted that petitioners would be questioned about third parties and that the questions would be based upon petitioners' intercepted telephone conversations. Petitioners appeared before the grand jury, but declined to answer any questions based upon their intercepted conversations until they were afforded an opportunity to challenge the legality of the interceptions. Following a hearing, the United States District Court for the Central District of California found petitioners in contempt and, pursuant to 28
No. 71-263. Respondents Egan and Walsh were called before a federal grand jury convened in Harrisburg, Pennsylvania, to investigate, among other possible crimes, an alleged plot to kidnap a Government official. Pursuant to 18 U. S. C. § 2514, both respondents were granted transactional immunity in return for their testimony. Respondents appeared before the grand jury, but refused to answer questions on the ground, among others, that the questions were based upon information overheard from respondents by means of the Government's illegal wiretapping and electronic surveillance. The Government did not reply to respondents' allegations.
Section 1826 (a) expressly limits the adjudication of civil contempt to the case of a grand jury witness who "refuses without just cause shown to comply with an order of the court to testify." Our inquiry, then, is whether a showing that interrogation would be based upon the illegal interception of the witness' communications constitutes a showing of "just cause" that precludes a finding of contempt. The answer turns on the construction of Title III of the Omnibus Crime Control Act.
In Title III, Congress enacted a comprehensive scheme for the regulation of wiretapping and electronic surveillance. See United States v. United States District Court, 407 U.S. 297, 301-306. Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. 18 U. S. C. §§ 2516, 2518 (1)-(8). If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. 18 U. S. C. § 2517. Except as expressly authorized in Title III, however, all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes, 18 U. S. C. § 2511 (1), and the victim of such interception, disclosure, or use is entitled to recover civil damages, 18 U. S. C. § 2520. Title III also bars the use as evidence before official bodies of the contents and fruits of illegal interceptions, 18 U. S. C. § 2515, and provides procedures for moving to suppress such evidence in various proceedings, 18 U. S. C. § 2518 (9)-(10).
The witnesses in these cases were held in contempt for disobeying court orders by refusing to produce evidence —their testimony—before grand juries. Consequently, their primary contention is that § 2515, the evidentiary prohibition of Title III, afforded them a defense to the contempt charges. In addressing that contention, we must assume, in the present posture of
The narrow question, then, is whether under these circumstances the witnesses may invoke the prohibition of § 2515 as a defense to contempt charges brought on the basis of their refusal to obey court orders to testify. We think they may.
The unequivocal language of § 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information:
The Senate committee report that accompanied Title III underscores the congressional policy:
Hence, although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern.
And the Senate report, like the congressional findings, specifically addressed itself to the enforcement, by means
Section 2515 is thus central to the legislative scheme. Its importance as a protection for "the victim of an unlawful invasion of privacy" could not be more clear.
In sum, Congress simply cannot be understood to have sanctioned orders to produce evidence excluded from grand jury proceedings by § 2515. Contrary to the Government's assertion that the invasion of privacy is over
Our conclusion that § 2515 is an available defense to the contempt charge finds additional support in 18 U. S. C. § 3504, enacted as part of the Organized Crime Control Act of 1970, 84 Stat. 935. Section 3504 is explicit confirmation that Congress intended that grand jury witnesses, in reliance upon the prohibition of § 2515, might refuse to answer questions based upon the illegal interception of their communications.
Under § 3504 (a) (2), disclosure of information relating to the claim of inadmissibility is not mandatory if the "unlawful act" took place before June 19, 1968, the effective date of Title III. Under § 3504 (a) (3), there is a five-year limitation upon the consideration of a claim of inadmissibility based upon "the exploitation of an unlawful act" that took place before June 19, 1968. Section 3504 (b), by reference to Title III, defines an "unlawful act" as one involving illegal wiretapping or electronic surveillance.
The Government urges, however, that the procedures prescribed in § 3504 are limited in application to claims of inadmissibility based upon illegal interceptions that took place before June 19, 1968, and that § 3504 cannot, therefore, provide support for a construction of § 2515. We disagree. While subsections (a) (2) and (a) (3) apply only when the illegal interception took place before June 19, 1968, it is clear both from the face of § 3504
The omission of the June 19, 1968, date from subsection (a) (1) was not inadvertent. Subsection (a) (1) was not in the original Senate bill, although the bill did contain counterparts of present subsections (a) (2) and (a) (3) without the June 19, 1968, or any other date limitation.
The reason assigned in the Senate for enacting subsection (a) (1) was thus as applicable to post- as it was to pre-June 19, 1968, interceptions. The same was true of the House. There subsection (a) (1) was supported on the ground that it would be beneficial to the victims of illegal interceptions. Senator McClellan, for example, who testified before the House Subcommittee, indicated that subsection (a) (1) "places upon the Government an affirmative duty to answer a claim that evidence is inadmissible because of unlawful investigative conduct." "The first requirement [of § 3504], that the Government admit or deny the occurrence of the alleged invasion of the defendant's rights, actually places or codifies a burden upon the Government, rather than the defendant." Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on S. 30 et al., 91st Cong., 2d Sess., 84, 104 (1970). Other witnesses thought the provision unnecessary.
The June 19, 1968, date was inserted in subsections (a) (2) and (a) (3) after the conclusion of the House hearings. It is apparent from the House report that only subsections (a) (2) and (a) (3) of the Senate version were to be limited by the June 19, 1968, date and that subsection (a) (1) was to be operative without regard to when the alleged illegal interception may have taken place:
This explanation demonstrates that "the opponent of the claim"
The Government argues, finally, that while § 2515 could be construed to allow a grand jury witness to invoke its prohibition as a defense to a contempt charge, "[i]f this section were the only relevant portion of [Title III]," Brief for the United States in No. 71-263, p. 19, proceedings before grand juries are omitted from another provision of Title III, § 2518 (10) (a), that authorizes "[a]ny aggrieved person,"
Furthermore, grand jury witnesses do not normally discover whether they may refuse to answer questions by filing motions to suppress their potential testimony. The usual procedure is, upon the Government's motion, to have a court order a grand jury witness to testify upon penalty of contempt for noncompliance. Section 1826 (a) embodies that traditional procedure. The asserted omission of grand jury proceedings from § 2518
The judgment of the Court of Appeals for the Ninth Circuit in No. 71-110 is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Although I join in the opinion of the Court, I believe that, independently of any statutory refuge which Congress may choose to provide, the Fourth Amendment shields a grand jury witness from any question (or any subpoena) which is based upon information garnered from searches which invade his own constitutionally protected privacy.
I would hold that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 offends the Fourth Amendment, as does all wiretapping and bugging, for reasons which I have often expressed elsewhere. E. g., Cox v. United States, 406 U.S. 934; Williamson v. United States, 405 U.S. 1026; Katz v. United States, 389 U.S. 347, 359; Berger v. New York, 388 U.S. 41, 64; Osborn v. United States, 385 U.S. 323, 340; Pugach v. Dollinger, 365 U.S. 458, 459; On Lee v. United States, 343 U.S. 747, 762. In each of the present cases a grand jury witness seeks to prove and suppress suspected unconstitutional seizures of his own telephone conversations. And, in every relevant respect, the proceedings below were in striking parallel to those in Silverthorne Lumber Co. v. United States, 251 U.S. 385.
In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and to their lumber company, the documents were returned upon order of the court. In the interim, however, the agents had copied them. After returning the seized originals, the prosecutor attempted to regain possession of them by issuing a grand jury subpoena duces tecum. When the petitioners refused to comply with the subpoena they
Petitioners Gelbard and Parnas and respondents Egan and Walsh occupy positions which are virtually identical to that of the Silverthornes and their company. They desire to demonstrate that but for unlawful surveillance of them the grand jury would not now be seeking testimony from them. And, as in Silverthorne, they are the victims of the alleged violations, seeking to mend no one's privacy other than their own. Finally, here, as there, the remedy preferred is permission to refuse to render the requested information.
Unless Silverthorne is to be overruled and uprooted from those decisions which have followed it, such as Nardone v. United States, 308 U.S. 338, 340-341; Benanti v. United States, 355 U.S. 96, 103; Elkins v. United States, 364 U.S. 206, 210; Mapp v. Ohio, 367 U.S. 643, 648; Wong Sun v. United States, 371 U.S. 471, 484-485; Harrison v. United States, 392 U.S. 219, 222; and Alderman v. United States, 394 U.S. 165, 171, 177, these witnesses deserve opportunities to prove their allegations and, if successful, to withhold from the Government any further rewards of its "dirty business." Olmstead v. United States, 277 U.S. 438, 470 (Holmes, J., dissenting).
The Solicitor General does not propose that Silverthorne be overruled. Nor does he deny its remarkable similarity. Indeed, his analysis of the constitutional issue at stake here fails even to mention that landmark decision.
Rather, the Government treats this decision as a "novel
To be sure, no majority of this Court has ever held that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." Id., at 174. But that concern is not at stake here. No one is attempting to assert vicariously the rights of others. Here it is only necessary to adhere to the basic principle that victims of unconstitutional practices are themselves entitled to effective remedies. For, "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S. 678, 684. And see Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388.
The fact that the movants below sought to withhold evidence does not transform these cases into unusual ones. A witness is often permitted to retain exclusive custody of information where a contrary course would jeopardize important liberties such as First Amendment guarantees, Watkins v. United States, 354 U.S. 178; NAACP v. Alabama, 357 U.S. 449, 463; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539; Baird v. State Bar of Arizona, 401 U.S. 1, 6-7; In re Stolar, 401 U.S. 23;
The same is true of Fourth Amendment authority to withhold evidence, even from a grand jury. Hale v. Henkel, 201 U.S. 43; Silverthorne, supra. No one would doubt, for example, that under Bell v. Hood, supra, and Bivens, supra (or Monroe v. Pape, 365 U.S. 167, where state police were concerned), a telephone subscriber could obtain an injunction against unlawful wiretapping of his telephone despite the fact that such termination might remove from the Government's reach evidence with which it could convict third parties.
A contrary judgment today would cripple enforcement of the Fourth Amendment. For, if these movants, who the Solicitor General concedes are not the prosecutors' targets, were required to submit to interrogation, then they (unlike prospective defendants) would have no further opportunity to vindicate their injuries. More generally, because surveillances are often "directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions," United States v. United States District Court, 407 U.S. 297, 318-319, the normal exclusionary threat of Weeks v. United States, 232 U.S. 383, would be sharply attenuated and intelligence centers would be loosed from virtually every deterrent against abuse.
Today's remedy assumes an added and critical measure of importance for, due to the clandestine nature of electronic eavesdropping, other inhibitions on officers' abuse, such as the threat of damage actions, reform through the political process, and adverse publicity, will be of little avail in guarding privacy.
Moreover, when a court assists the Government in extracting fruits from the victims of its lawless searches it degrades the integrity of the judicial system. For "[n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659. For this reason, our decisions have embraced
In an entrapment case, Mr. Justice Frankfurter, with whom Justices Harlan, BRENNAN, and I joined, thought that "the federal courts have an obligation to set their face against enforcement of the law by lawless means" because "[p]ublic confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law; is the transcending value at stake." Sherman v. United States, 356 U.S. 369, 380 (concurring in result); see also his opinion for the Court in Nardone v. United States, 308 U.S. 338, 340-341. In a Self-Incrimination
These standards are at war with the Government's claim that intelligence agencies may invoke the aid of the courts in order to compound their neglect of constitutional values. To be sure, at some point taint may become so attenuated that ignoring the original blunder will not breed contempt for law. But here judges are not asked merely to overlook infractions diminished by time and independent events. Rather, if these witnesses' allegations are correct, judges are being invited to become the handmaidens of intentional
In summary, I believe that Silverthorne was rightly decided, that it was rooted in our continuing policy to equip victims of unconstitutional searches with effective means of redress, that it has enjoyed repeated praise in subsequent decisions, that it has not been seriously challenged here, and that it requires that we affirm the Third Circuit in Egan and Walsh and reverse the Ninth Circuit in Gelbard and Parnas.
MR. JUSTICE WHITE, concurring.
Under 28 U. S. C. § 1826 (a) a witness who refuses to testify "without just cause" may be held in contempt of court. Here, grand jury witnesses are involved, and the just cause claimed to excuse them is that the testimony demanded involves the disclosure and use of communications
The United States asserts that § 2515 affords no excuse to grand jury witnesses under any circumstances. Reliance is placed on § 2518 (10) (a) and the legislative history of the statute. I agree with the Court, however, that at least where the United States has intercepted communications without a warrant in circumstances where court approval was required, it is appropriate in construing and applying 28 U. S. C. § 1826 not to require the grand jury witness to answer and hence further the plain policy of the wiretap statute. This unquestionably works a change in the law with respect to the rights of grand jury witnesses, but it is a change rooted in a complex statute, the meaning of which is not immediately obvious as the opinions filed today so tellingly demonstrate.
Where the Government produces a court order for the interception, however, and the witness nevertheless demands a full-blown suppression hearing to determine the legality of the order, there may be room for striking a different accommodation between the due functioning of the grand jury system and the federal wiretap statute. Suppression hearings in these circumstances would result in protracted interruption of grand jury proceedings. At the same time, prosecutors and other officers who have been granted and relied on a court order for the interception would be subject to no liability under the statute, whether the order is valid or not; and, in any event, the deterrent value of excluding the evidence will be marginal at best. It is well, therefore, that the Court has left this issue open for consideration by the District Court on remand. See ante, at 61 n. 22.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE POWELL join, dissenting.
Disposition of these cases depends on the sorting out of admittedly conflicting implications from different sections of the principal statute involved. The Court's conclusion, while supportable if regard be had only for the actual language of the sections, is by no means compelled by that language. Its conclusion is reached in utter disregard of the relevant legislative history, and quite without consideration of the sharp break that it represents with the historical modus operandi of the grand jury. It is, in my opinion, wrong.
The Court states the question to be whether witnesses threatened with contempt under 28 U. S. C. § 1826 (a) "are entitled to invoke this prohibition of § 2515 as a defense to contempt charges brought against them for refusing to testify." Ante, at 43. The question as thus framed by the Court has been so abstracted and refined, and divorced from the particulars of these two cases, as to virtually invite the erroneous answer that the opinion of the Court gives.
Nor is it accurate to "assume," as the Court does, that the Government's overhearing of these witnesses was in violation of the applicable statute. Petitioner Gelbard contended in the trial court that the United States planned to use his electronically overheard conversations as one basis for questioning him before the grand jury, and so stated in a presentation to that court. The Government in a reply affidavit stated that whatever information had been gathered as a result of electronic overhearing had been obtained from wiretaps conducted
Thus what was presented to the trial court in this proceeding under 18 U. S. C. § 1826 (a) was not a neatly stipulated question of law, but a demand by the petitioners that they be permitted to roam at will among the prosecutor's records in order to see whether they might be able to turn up any evidence indicating that the Government's overhearing of their conversations had been unauthorized by statute. In order to determine whether this particular type of remedy is open to these petitioners at this particular stage of potential criminal proceedings it is not enough to recite, as the Court does, that 18 U. S. C. § 2515 prohibits the use of illegally overheard wire communications before grand juries as well as before other governmental bodies. This
It may be helpful at the outset to treat briefly the background of 28 U. S. C. § 1826 (a). As the Court notes, this provision was enacted as a part of the Organized Crime Control Act of 1970, and the Senate Report states that it was intended to codify the "present practice" of the federal courts. S. Rep. No. 91-617, p. 148 (1969). The existing practice of the federal courts prior to the enactment of this section was based on Fed. Rule Crim. Proc. 42 and on 18 U. S. C. § 401, both of which dealt generally with the power of courts to punish for contempt. The enactment of § 1826 (a) appears to have resulted from a desire on the part of Congress to treat separately from the general contempt power of courts their authority to deal with recalcitrant witnesses in court or grand jury proceedings. Since, as the Senate Report states, the enactment of this provision was designed to "codify present practice" it is instructive to note the types of claims litigated in connection with grand jury matters under Rule 42 and 18 U. S. C. § 401 prior to the enactment of this new section. So far as the reported decisions of this Court and of the lower federal courts reveal, prior litigation with respect to grand juries has dealt almost exclusively with questions of privilege, and most of these cases have dealt with issues of the privilege against self-incrimination. While it is plain that the respondent in such proceedings was entitled to a hearing and to adduce evidence, it is equally plain that the
Some of the flavor of the type of proceeding contemplated under the prior practice is gleaned from the following passage in the Court's opinion in Shillitani v. United States, 384 U.S. 364, 370 (1966) (citations omitted):
These proceedings seem almost invariably to have been short and summary in nature, not because the defendant was to be denied a fair hearing, but because the type of issue that could be raised at such a proceeding was one which did not generally permit extensive factual development. Even where a court of appeals reversed a contempt adjudication because of the district court's failure to allow the defendant to testify on his own behalf with respect to material issues, there was no hint of either the right to, or the necessity for, any discovery proceedings against the Government. Hooley v. United States, 209 F.2d 219 (CA1 1954).
Congress was, of course, free to expand the scope of inquiry in these proceedings, to enlarge the issues to
Just as Congress was not writing on a clean slate in the area of contempt hearings, it was not writing on a clean slate with respect to the nature of grand jury proceedings. These petitioners were called before a grand jury that had been convened to investigate violations of federal laws. We deal, therefore, not with the rights of a criminal defendant in the traditional adversary context of a trial, but with the status of witnesses summoned to testify before a body devoted to sifting evidence that could result in the presentment of criminal charges. Just as the cases arising under the antecedents of 28 U. S. C. § 1826 (a) suggest a limitation on the type of issue which may be litigated in such a proceeding, cases dealing with the role of the grand jury stress the unique breadth of its scope of inquiry. In Blair v. United States, 250 U.S. 273, 282 (1919), this Court defined the vital investigatory function of the grand jury:
Another passage from Blair pointed out the citizen's obligation to obey the process of the grand jury:
In Costello v. United States, 350 U.S. 359, 362 (1956), the Court traced the development of the English grand jury and concluded that the probable intent of the Framers of our Constitution was to parallel that institution as it had existed in England where "[g]rand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules." 350 U. S., at 362. The Court in Costello was at pains to point out the necessity of limiting the nature of challenges to evidence adduced before a grand jury if that body were to retain its traditional comprehensive investigative authority:
While this general statement applied by its terms only to one who was ultimately indicted by the grand jury, its reasoning applies with like force to one who seeks to make an evidentiary challenge to grand jury proceedings on the basis of his status as a prospective witness. Indeed, time-consuming challenges by witnesses during the course of a grand jury investigation would be far more inimical to the function of that body than would a motion to dismiss an indictment after it had concluded its deliberations.
In Lawn v. United States, 355 U.S. 339 (1958), the Court refused to accord to petitioners the hearing, prior to trial, on the issue of whether or not a grand jury which indicted them had made direct or derivative use of materials the use of which by an earlier grand jury had been held to violate the petitioners' privilege against self-incrimination. In supporting its conclusion that the petitioners should not even be accorded a hearing to sustain these contentions, the Court quoted a passage from Costello describing the grand jury as
It seems to me to be clear beyond cavil from these cases that prior to the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, a hearing such as
When Congress set out to enact the two statutes on which the Court relies, it was certainly not with any announced intent to change the nature of contempt hearings relating to grand jury proceedings, or to change the modus operandi of the grand jury. Instead, largely in response to the decisions of this Court in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The ultimate result was the 1968 Act. Critical to analysis of the issue involved here are §§ 2515 and 2518 (10) (a) of that Act, which provide in pertinent part as follows:
Here is presented at the very least an implied conflict between two separate sections of the same Act. Section 2515 proscribes generally the use of unlawfully intercepted communications as evidence before a number of specified bodies, including a grand jury. Section 2518 (10) (a) provides for the type of hearing that petitioners sought and were denied by the District Court; it provides such hearings in connection with a number of specified legal proceedings, but it conspicuously omits proceedings before a grand jury. The method by which the Court solves this dilemma is to state that if petitioners succeed after their discovery in establishing their claim of unlawful electronic surveillance, their questioning before the grand jury on the basis of such electronic surveillance would violate § 2515 as, of course, it presumptively would. Therefore, says the Court, petitioners must be entitled to the discovery and factual hearing which they seek, even though § 2518 (10) (a) rather clearly denies it to them by implication.
A construction which I believe at least equally plausible, based simply on the juxtaposition of the various sections of the statute, is that § 2515 contains a basic proscription of certain conduct, but does not attempt to specify remedies or rights arising from a breach of that proscription; the specification of remedies is left
The omission of "grand jury" from the designated forums in § 2518 (10) (a) is not explainable on the basis that though the testimony is sought to be adduced before a grand jury, the motion to suppress would actually be made in a court, which is one of the forums designated in § 2518 (10) (a). The language "in any trial, hearing, or proceeding in or before" quite clearly refers to the forum in which the testimony is sought to be adduced. But even more significant is the inclusion among the designated forums of "department," "officer," "agency," and "regulatory body." Congress has almost without exception provided that issues as to the legality and propriety of subpoenas issued by either agencies or executive departments should be resolved by the courts. It has accomplished this result by requiring the agency to bring an independent judicial action to enforce obedience to its subpoena. See, e. g., 15 U. S. C. § 79r, Public Utility Holding Company Act of 1935; 15 U. S. C. § 78u, Securities Exchange Act of 1934; 41 U. S. C. §§ 35-45. Walsh-Healey
Thus, if Congress in § 2518 had intended to focus on the forum in which the hearing as to the legality of the subpoena is to be determined, rather than the forum in which the testimony is sought to be adduced, it would have omitted not only grand juries, but departments, officers, agencies, and regulatory bodies as well from the coverage of § 2518 (10) (a). For questions as to the legality of subpoenas issued by all these bodies are resolved in the courts. By omitting only grand juries in § 2518, Congress indicated that it was dealing with the forum in which the testimony was sought to be adduced, and that the suppression hearing authorized by the section was not to be available to grand jury witnesses.
In the light of these conflicting implications from the statutory language itself, resort to the legislative history is appropriate. Passages from the legislative history cited by the Court in its opinion do not focus at all on the availability of a suppression hearing in grand jury proceedings; they simply speak in general terms of the congressional intent to prohibit and penalize unlawful electronic surveillance, of which intent there can, of course, be no doubt. But several parts of the legislative history address themselves, far more particularly than any relied upon by the Court in its opinion, to the actual issue before us. The Senate Report, for example,
There is an intimation in the opinion of the Court that the reason this language was used may have been that grand juries do not pass upon motions to suppress, while courts do. This intimation is not only inconsistent with the language of the section itself, as pointed out, supra, at 80, but it attributes to the drafters of the report a lower level of understanding of the subject matter with which they were dealing than I believe is justified. It is also rather squarely contradicted by the statement that there is no limitation on the character of evidence that may be presented to a grand jury "which is enforcible by an individual." Had the report meant to stress the presumably well-known fact that grand juries do not themselves grant motions to suppress, it would not have
The fact that the report states the reason for the policy adopted in terms of the rights of an "individual," rather than in terms of the rights of a "defendant," makes the Court's discussion of the doctrine of various cases, ante, at 60, of doubtful help in construing the statute. Whatever United States v. Blue, supra, may be said to "hold" after careful analysis by this Court, the drafters of the Senate Report undoubtedly took it to stand for the proposition for which they cited it. As stated by Mr. Justice Frankfurter, concurring in Green v. United States, 356 U.S. 165, 189:
Not only does the report dealing with § 2518 (10) (a) make clear that it is to be construed in connection with § 2515, which it limits, but the section of the same report dealing with § 2515 re-emphasizes this conclusion. Speaking of the latter section, the report says:
The conclusion that § 2518 (10) (a) is the exclusive source of the right to move to suppress is further fortified by the Senate Report's comment on § 2510 (11) of the Act, which defines an "aggrieved person" as one who is a party to an "intercepted wire or oral communication or a person against whom the interception was directed." The Senate Report, p. 91, states:
Finally, § 2518 (9) requires the Government to provide to each party to "any trial, hearing or other proceeding" a copy of the court order authorizing surveillance if the Government intends to use the fruits thereof. The Senate Report, p. 105, states:
If § 2515 of the Omnibus Crime Control and Safe Streets Act of 1968 stood alone without any informative legislative history, the Court's conclusion with respect to the rights of these petitioners would be plainly correct. If the conflicting implications from two sections of the same statute were present in a regulatory scheme which was to stand by itself, rather than to be super-imposed on procedures such as contempt hearings and
The Court seeks to bolster its reasoning by reliance upon 18 U. S. C. § 3504 (a) (1), which was a part of the Organized Crime Control Act of 1970. That section provides in pertinent part as follows:
Assuming, arguendo, that this section does apply to petitioners in No. 71-110, the record in the District Court and the opinion of the Court of Appeals clearly show that only Gelbard made what might be called a "claim" within the language of the section, and that the Government in its response did "affirm or deny" the occurrence of the alleged unlawful act; in fact, the Government denied the occurrence of the unlawful act. This should be sufficient for disposition of the case as to these petitioners.
The Court, without giving much guidance to those who would seek to follow the path by which it reaches the conclusion, concludes that this section "confirms that
But even if the Court were correct in deciding that § 3504 (a) (1) requires more than it says of the Government, I believe the Court errs in deciding that this section applies at all to these petitioners. Title VII as enacted actually consists of two parts, A and B. Part A is a series of findings by Congress, reading as follows:
The House Report (to accompany S. 30) contains this comment on Part A:
The same report, in its introductory discussion of Title VII, contains the following statement:
The Senate Report, too, casts § 3504 (a) (1) in quite a different light from that in which the Court puts it:
These conclusions in the Senate Report are supported by statements of the bill's managers in the House during the time it was being debated. Congressman Poff explained Title VII as follows:
Congressman Celler explained the amendments incorporating the pre-June 19, 1968, time limitation into subsections (a) (2) and (a) (3) of § 3504 that had been made by a subcommittee of the House Judiciary Committee in these words:
Even more specific was the explanation of the amendment made by Congressman Poff on the floor of the House after the time provisions had been included:
The weight of the findings actually enacted by Congress in Part A and the uniform tenor of the legislative history outweigh, in my opinion, the ambiguity arising from the failure to actually include a cutoff date in § 3504 (a) (1).
Section 3504 (a) (1) by its terms, even if read totally out of its context and background, as the Court seeks to do, affords these petitioners no help because the Government has complied with its requirements in these cases. But more importantly, the entire thrust of the findings actually adopted by Congress, and of the reports of both Houses, makes it as plain as humanly possible that this section was intended as a limitation on existing rights of criminal defendants, not as an enlargement of them. Congress, displeased with the effect of this Court's decision in Alderman, supra, desired to put a statute of limitations type cutoff beyond which the Government would not be required to go in time in order to disprove taint. Equally displeased with the policy adopted by the Government of searching its files for evidence of taint even when none had been alleged
Neither the Omnibus Crime Control and Safe Streets Act of 1968 nor the Organized Crime Control Act of 1970, when construed in accordance with the canons of statutory construction traditionally followed by this Court, supports the expansive and novel claims asserted by these petitioners. The Court having reached a contrary conclusion, I respectfully dissent.
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