GELBARD ET AL. v. UNITED STATES
No. 71-110
Supreme Court of the United States
Argued March 27, 1972-Decided June 26, 1972*
408 U.S. 41
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,
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
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
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
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.5
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.
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
The narrow question, then, is whether under these circumstances the witnesses may invoke the prohibition of The unequivocal language of “To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire or oral communications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information The Senate committee report that accompanied Title III underscores the congressional policy: “Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause.” S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). Hence, although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern.7 Indeed, the congressional findings articulate “In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings.” § 801 (b), 82 Stat. 211 (emphasis added).8 And the Senate report, like the congressional findings, specifically addressed itself to the enforcement, by means “Virtually all concede that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants. No one quarrels with the proposition that the unauthorized use of these techniques by law enforcement agents should be prohibited. . . . Only by striking at all aspects of the problem can privacy be adequately protected. The prohibition, too, must be enforced with all appropriate sanctions. Criminal penalties have their part to play. But other remedies must be afforded the victim of an unlawful invasion of privacy. Provision must be made for civil recourse for damages. The perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings. Each of these objectives is sought by the proposed legislation.” S. Rep. No. 1097, supra, at 69 (emphasis added). 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.9 The purposes of In sum, Congress simply cannot be understood to have sanctioned orders to produce evidence excluded from grand jury proceedings by Our conclusion that “(a) In any . . . proceeding in or before any . . . grand jury . . . . “(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.” Under Section 3504, then, establishes procedures to be followed “upon a claim by a party aggrieved that evidence is inadmissible because” of an illegal interception. And The Government urges, however, that the procedures prescribed in 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.14 See Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary on S. 30 et al., 91st Cong., 1st Sess., 102- 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 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: “Paragraph (1) provides that upon a claim by an aggrieved party that evidence is inadmissible because it is the primary product of an unlawful act, or because it was obtained by the exploitation of an unlawful act, the opponent of the claim must affirm or deny the occurrence of the alleged unlawful act. Under this provision, upon a charge by the defendant with standing to challenge the alleged unlawful conduct, the Government would be required to affirm or deny that an unlawful act This explanation demonstrates that “the opponent of the claim”16 has a duty to “affirm or deny” whenever “a party aggrieved” “claim[s] . . . that evidence is inadmissible because it is” derived from an illegal interception. The date June 19, 1968, becomes relevant only after it is determined that an illegal interception took place and an issue thus arises as to disclosure of information bearing on the claim.17 The Government argues, finally, that while 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 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.22 The judgment of the Court of Appeals for the Third Circuit in No. 71-263 is affirmed.23 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 I would hold that 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 de- 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 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 The same is true of A contrary judgment today would cripple enforcement of the 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 em- 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- 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 intentional5 police lawlessness by ordering these victims to elaborate on their telephonic communications of which the prosecutors would have no knowledge but for their unconstitutional surveillance. 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 The United States asserts that 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 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 “When cited for contempt in the district court, each attacked the constitutional validity of Section 2518, and additionally urged that he should not be required to testify until and unless first allowed to inspect all applications, orders, tapes and transcripts relating to such electronic surveillance and afforded an opportunity to suppress the use before the grand jury of any evidence so secured. . . .” 443 F. 2d 837, 838. Thus what was presented to the trial court in this proceeding under It may be helpful at the outset to treat briefly the background of 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): “There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt .... And it is essential that courts be able to compel the appearance and testimony of witnesses .... A grand jury subpoena must command the same respect . . . . Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance . . . .” 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 “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of Another passage from Blair pointed out the citizen‘s obligation to obey the process of the grand jury: “[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned.” Id., at 281. 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: “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on the kind of preliminary trial to determine the competency and 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 “‘[an] institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.‘” 355 U. S., at 350. It seems to me to be clear beyond cavil from these cases that prior to the enactment of the 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 “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority... if the disclosure of that information would be in violation of this chapter.” “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any “(i) the communication was unlawfully intercepted; “(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval....” Here is presented at the very least an implied conflict between two separate sections of the same Act. A construction which I believe at least equally plausible, based simply on the juxtaposition of the various sections of the statute, is that The omission of “grand jury” from the designated forums in Thus, if Congress in 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, “This provision [§ 2518 (10) (a)] must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. 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 is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. [United States v. Blue, 384 U. S. 251 (1966).] There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding.” S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). (Emphasis added.) 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: “The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions.” Not only does the report dealing with “The provision must, of course, be read in light of section 2518 (10) (a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. . . . Nor generally [is there any intention] to press the scope of the suppression rule beyond present search and seizure law. See Walder v. United States, 347 U. S. 62 (1954). . . . The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and The conclusion that “This definition defines the class of those who are entitled to invoke the suppression sanction of section 2515 discussed below, through the motion to suppress provided for by section 2518 (10) (a), also discussed below. It is intended to reflect existing law. . . .” (Citations omitted.) (Emphasis added.) Finally, “‘Proceeding’ is intended to include all adversary type hearings. . . . It would not include a grand jury hearing. Compare [United States v. Blue, supra].” If The Court seeks to bolster its reasoning by reliance upon “(a) In any proceeding . . . before any . . . grand jury . . . “(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.” 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 “The Congress finds that claims that evidence offered in proceedings was obtained by the exploitation of unlawful acts, and is therefore inadmissible in evidence, (1) often cannot reliably be determined when such claims concern evidence of events occurring years after the allegedly unlawful act, and (2) when the allegedly unlawful act has occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been obtained by the exploitation of that allegedly unlawful act.” § 701, 84 Stat. 935. The House Report (to accompany S. 30) contains this comment on Part A: “This section contains a special finding relating, as do the following sections of the title, to certain evidentiary problems created by electronic surveillance conducted by the Government prior to the enactment of Public Law 90-351 on June 19, 1968, which provided statutory authority for obtaining surveillance warrants in certain types of criminal The same report, in its introductory discussion of Title VII, contains the following statement: “Title VII intends to limit disclosure of information illegally obtained by the Government to defendants who seek to challenge the admissibility of evidence because it is either the primary or indirect production [sic] of such an illegal act. The title also prohibits any challenge to the admissibility of evidence based on its being the fruit of an unlawful governmental act, if such act occurred 5 years or more before the event sought to be proved. As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law (chapter 119, title 18, United States Code).” Id., at 34. (Emphasis supplied.) The Senate Report, too, casts “Lastly, it should be noted that nothing in section 3504 (a) (1) is intended to codify or change present law defining illegal conduct or prescribing requirements for standing to object to such conduct or to use of evidence given under an immunity grant. See, e. g., Giordano v. United States, 394 U. S. 310 (1969); Alderman v. United States, 394 U. S. 165 (1969). Nevertheless, since it requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files without a motion from a de- 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: “Title VII of S. 30 . . . would, first, reverse the Supreme Court‘s decision in Alderman v. United States, 394 U. S. 165 (1969) requiring, under its supervisory power, the disclosure of Government files in criminal trials, and . . . would, second, set a 5-year ‘statute of limitations’ on inserting issues dealing with the ‘fruit of the poisonous tree’ in similar cases.” 116 Cong. Rec. 35192. Congressman Celler explained the amendments incorporating the pre-June 19, 1968, time limitation into subsections (a)(2) and (a)(3) of “As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law—chapter 119, title XVIII, United States Code.” Id., at 35196. 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: “TITLE VII — LITIGATION CONCERNING SOURCES OF EVIDENCE “Mr. Chairman, title VII of the Organized Crime Control Act is designed to regulate motions to suppress evidence in certain limited situations where “Where there was in fact an unlawful overhearing prior to June 19, 1968, the title provides for an in camera examination of the Government‘s transcripts and records to determine whether they may be relevant to the claim of inadmissibility. . . . To the extent that the court is permitted to determine relevancy in an ex parte proceeding, the title will modify the procedure established by the Supreme Court in Alderman v. United States [citation omitted]. . . . “As I have indicated, the title applies only to disclosures where the electronic surveillance occurred prior to June 19, 1968. It is not necessary that it apply to disclosure where an electronic surveillance occurred after that date, because such disclosure will be mandated, not by Alderman, but by section 2518 of title 18, United States Code, added by title III of the Omnibus Crime Control and Safe Streets Act of 1968. 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 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.
II
I
II
III
IV
V
Notes
“Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—
“(1) the court proceeding, or
“(2) the term of the grand jury, including extensions,
“before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.”
This provision was enacted as part of the Organized Crime Control Act of 1970. It was intended to codify the existing practice of the federal courts. S. Rep. No. 91-617, pp. 33, 56-57, 148-149 (1969); H. R. Rep. No. 91-1549, pp. 33, 46 (1970); see Shillitani v. United States, 384 U. S. 364 (1966). At oral argument, counsel for the United States contended that Silverthorne Lumber Co. v. United States, 251 U. S. 385, was distinguishable. First, it was said that in these cases there has yet been no showing of illegal surveillance. Tr. of Oral Arg. 26. The point is, however, that these witnesses claim to be able to make such a showing, although none of the trial courts below have permitted hearings on the issue. Second, it was also argued that Silverthorne was inapposite because there the very papers seized unlawfully were the ones later sought under the court‘s subpoena. Ibid. But there is little doubt that Mr. Justice Holmes’ reasoning would also have relieved the Silverthornes from testifying before the grand jury as to the contents of the purloined papers. In the case of respondents Egan and Walsh, the Government in the District Court did not state whether it had engaged in electronic surveillance. In this Court, however, the Government represented that respondents Egan and Walsh had not been subjected to electronic surveillance. In light of this development, I would remand their case to the District Court in order to give the respondents another opportunity to testify. For this reason, references to “petitioners” throughout this opinion are meant to be to only petitioners Gelbard and Parnas.“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”
Three of the cases cited by the Solicitor General stand for nothing more than the rule that a defendant may not challenge prior to trial the evidence from which the indictment was drawn. Costello v. United States, 350 U. S. 359; Lawn v. United States, 355 U. S. 339; United States v. Blue, 384 U. S. 251. To be sure, the other authorities cited rejected various privileges from testifying but only for reasons which are not in conflict with Silverthorne Lumber Co. v. United States, supra. For example, in Murphy v. Waterfront Comm‘n, 378 U. S. 52; and Piemonte v. United States, 367 U. S. 556, in light of our dispositions in those cases, no threatened constitutional violation remained as a predicate for a privilege. For in Murphy we eliminated the threat that testimony to a state grand jury given in exchange for a state immunity grant could, despite the witness’ fears to the contrary, be used against him by other jurisdictions. And in Piemonte the“The need for comprehensive, fair and effective reform setting uniform standards is obvious. New protections for privacy must be enacted. Guidance and supervision must be given to State and Federal law enforcement officers. This can only be accomplished through national legislation. This the subcommittee proposes.” Ibid. (emphasis added).
“(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—
“(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;
“(2) disclosure of information for a determination if evidence is inadmissible because it is the primary product of an unlawful act occurring prior to June 19, 1968, or because it was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, shall not be required unless such information may be relevant to a pending claim of such inadmissibility; and
“(3) no claim shall be considered that evidence of an event is inadmissible on the ground that such evidence was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, if
“(b) As used in this section ‘unlawful act’ means any act [involving] the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.”
No question as to the constitutionality of § 3504 is raised in these cases.“(a) Any aggrieved person in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom. . . .”
While on its face