Warren E. Burger: In Number 71-110, Gelbard and Parnas against the United States. Mr. Tigar you may proceed when you’re ready.
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.
Potter Stewart: It’s what is ended?
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.
Warren E. Burger: Mr. Tigar.
Michael E. Tigar: Yes, Mr. Chief Justice.
Warren E. Burger: In your cases as distinguished from those that are to follow, was the wiretap authorized by warrant?
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.
Warren E. Burger: I just want to be sure to get that and I was clearing my mind.
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.
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?
Michael E. Tigar: Their conversations are overheard, Mr. Chief Justice.
Warren E. Burger: What’s the purpose of the grand jury investigation that is going on?
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.
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?
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 --
Warren E. Burger: If he has any such fear, doesn’t the Fifth Amendment give him rather sweeping protection?
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.
Warren E. Burger: Isn’t that just what you indicated he was afraid of?
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.
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?
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 -–
Thurgood Marshall: Well, if the tap was illegal?
Michael E. Tigar: If it’s illegal --
Thurgood Marshall: In 1971, could they call them in 1978 before grand jury?
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.
Thurgood Marshall: I am just trying to find out how much price did you want to pay?
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.
Warren E. Burger: Mr. Friedman.
Daniel M. 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.
Speaker: Challenge the evidence or declined to answer questions?
Daniel M. Friedman: Well, decline to answer questions Mr. Justice, on the basis of the evidence before the grand jury that claimed --
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?
Daniel M. Friedman: Refusing to answer --
Speaker: Not challenging evidence, they were asked to give evidence.
Daniel M. 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.
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?
Daniel M. 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.
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?
Daniel M. Friedman: No, Mr. Justice, they cannot, they can again refuse to answer any question that might tend to incriminate. They cannot refuse --
Potter Stewart: So you are not limiting it to a grand jury?
Daniel M. 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.
Potter Stewart: Of that very witness?
Daniel M. Friedman: Of that very witness, that is correct.
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?
Daniel M. 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 --
Potter Stewart: Well, that is a question begging. What is a permissible privilege?
Daniel M. 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.
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.
Daniel M. Friedman: Well, but the Fourth Amendment right has already been violated Mr. Justice and we don’t --
Potter Stewart: And will be continually I suppose if there is no sanction against its violation.
Daniel M. 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 --
Potter Stewart: Well, that’s true in the basic Weeks situation or Mapp situation. The violations taken before the crime.
Daniel M. 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.
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.
Daniel M. Friedman: Well –-
Thurgood Marshall: And he is trying to find some way to get around being a volunteer witness before the grand jury.
Daniel M. Friedman: Well, he is not a volunteer witness he is --
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?
Daniel M. Friedman: In so far as he was a witness before the grand jury that is correct.
Thurgood Marshall: Regardless of how unlawful the action of the prosecuted authority was.
Daniel M. Friedman: With one exception Mr. Justice, with one exception and that is the situation involved in the Silverthorne case.
Thurgood Marshall: That’s right.
Daniel M. 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.
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?
Daniel M. Friedman: Well it is hard it -- We can approach it either way their contention is that they -- you could approach it I think --
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.
Daniel M. 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.
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.
Daniel M. Friedman: I think so. I will come to -- I have an argument as to why--
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.
Daniel M. Friedman: That’s the assumption of this argument.
Speaker: And nevertheless you say -- and nevertheless you say the statute does not permit or does not anticipate exclusion of the grand jury.
Daniel M. 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.
Speaker: All right.
Daniel M. Friedman: But we assume for purposes of this discussion that there has been a violation.
Speaker: And that this was an illegal interception.
Daniel M. Friedman: We assume that for purposes of the discussion.
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.
Daniel M. 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 --
Speaker: Well, that’s all you had on its face. It leads right on this situation, isn’t it?
Daniel M. 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 --
Speaker: Or any fruits?
Daniel M. 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.
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?
Daniel M. 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 --
Speaker: Sometime it’s easy though.
Daniel M. Friedman: Sometimes it is easy but --
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.
Daniel M. 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.
Speaker: Right, right but actually he couldn’t tell them this indictment.
Daniel M. 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.
Speaker: It’s interesting you do not cite any of the Fourth Amendment cases given in the grand jury in your brief.
Daniel M. Friedman: Oh! I have look I said Mr. Justice we do, I believe but they cited in the brief in the Egan case.
Speaker: Oh I see!
Daniel M. 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 --
Speaker: Did you, in the other brief you deal with Dionisio case of the Seventh Circuit?
Daniel M. 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 --
Potter Stewart: Not in the Green brief?
Daniel M. Friedman: No, it’s not in the Green brief Mr. Justice. It is in the Government’s brief in the next case.
Potter Stewart: In Egan?
Daniel M. 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.
Warren E. Burger: Thank you Mr. Friedman. Do you have anything further Mr. Tigar?
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.
Byron R. White: What say no --
Michael E. Tigar: Pardon?
Byron R. White: You would say that -- Would you say that the witness can apply with the person indicted, is that it?
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 --
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?
Michael E. Tigar: I think so Mr. Justice White in this kind of a case.
Byron R. White: What if something is wrong?
Michael E. Tigar: If I am wrong on that Mr. Justice White, I think we --
Byron R. White: Where you wrong on these cases?
Michael E. Tigar: No, we’re not wrong on this case because --
Byron R. White: That is tough line, I thought.
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.
Speaker: It is on (Inaudible).
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.
Speaker: But it doesn’t necessary follow in every case?
Michael E. Tigar: It doesn’t.
Speaker: Government's trial should maintain.
Michael E. Tigar: It doesn’t necessary follow in every case. No.
Speaker: Let assume one where it doesn’t.
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 --
Byron R. White: You might be indicted yourself.
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.
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?
Michael E. Tigar: If “A” is a government agent.
Thurgood Marshall: “A” is a priest.[Laughter]
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.
Thurgood Marshall: But supposed it was a State Officer who beat him up?
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.
Thurgood Marshall: Now what? Well, how?
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 --
Thurgood Marshall: What would he do before he testifies?
Michael E. Tigar: He could bring a suit citing Inri Freed as authority Mr. Justice Marshall.
Thurgood Marshall: Which should be decided a month that be testified.
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.
Warren E. Burger: Thank you gentleman. The case is submitted.