Gelbard v. United States United States v. Egan 8212 110, 71 8212 263, Nos. 71

• Court: United States Supreme Court
• Writing for the Court: BRENNAN
• Citation: 408 U.S. 41,92 S.Ct. 2357,33 L.Ed.2d 179
• Parties: David GELBARD and Sidney Parnas, Petitioners, v. UNITED STATES. UNITED STATES, Petitioner, v. Jogues EGAN and Anne Elizabeth Walsh. —110, 71—263
• Docket Number: Nos. 71
• Decision Date: 26 June 1972

408 U.S. 41 92 S.Ct. 2357 33 L.Ed.2d 179 David GELBARD and Sidney Parnas, Petitioners,

v.

UNITED STATES. UNITED STATES, Petitioner, v. Jogues EGAN and Anne Elizabeth Walsh.

Nos. 71—110, 71—263. Argued March 27, 1972. Decided June 26, 1972.

Syllabus

Where a grand jury witness is adjudicated in civil contempt under 28 U.S.C. § 1826(a) for refusing 'without just cause shown to comply with an order of the court to testify,' the witness may invoke as a defense 18 U.S.C. § 2515, which directs that '(w)henever 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 . . . proceeding in or before any . . . grand jury . . .,' since a showing that the interrogation would be based upon the illegal interception of the witness' communications would constitute the 'just cause' that precludes a finding of contempt. Pp. 46—61.

No. 71—110, 443 F.2d 837, reversed and remanded; No. 71—263, 450 F.2d 199 and 450 F.2d 231, affirmed.

Michael E. Tigar, San Francisco, Cal., for petitioners David Gelbard and Sidney Parnas.

Daniel M. Friedman, Washington, D.C., for the United States.

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Jack J. Levine, Philadelphia, Pa., for Joguez Egan and Anne Elizabeth Walsh, pro hac viceBy special leave of Court.

Mr. Justice BRENNAN delivered the opinion of the Court.

These cases present challenges to the validity of adjudications of civil contempt, pursuant to 28 U.S.C. § 1826(a),¹ of witnesses before federal grand juries

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who refused to comply with court orders to testify. The refusals were defended upon the ground that interrogation was to be based upon information obtained from the witnesses' communications, allegedly intercepted by federal agents by means of illegal wiretapping and electronic surveillance. A provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18 U.S.C. §§ 2510—2520, directs that '(w) henever 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 . . . proceeding in or before any . . . grand jury . . . if the disclosure of that information would be in violation of this chapter.' 18 U.S.C. § 2515.² The question presented is whether grand jury witnesses, in proceedings under 28 U.S.C. § 1826(a), are entitled to invoke this prohibition of § 2515 as a defense to contempt charges brought against them for refusing to testify. In No. 71—110, the Court of Appeals for the Ninth Circuit held that they are not entitled to do so. United States v. Gelbard, 443 F.2d 837 (1971). In No. 71 263, the Court of Appeals for the Third Circuit, en banc, reached the contrary conclusion. In re Grand Jury Proceedings, Harrisburg, Pa. (Egan), 450

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F.2d 199 (1971); In re Grand Jury Proceedings, Harrisburg, Pa. (Walsh), 450 F.2d 231 (1971). We granted certiorari. 404 U.S. 990, 92 S.Ct. 531, 30 L.Ed.2d 541 (1971).³ We disagree with the Court of Appeals for the Ninth Circuit and agree with the Court of Appeals for the Third Circuit.

No. 71—110. A federal district judge approved wiretaps by federal agents of the telephones of Perry Paul, an alleged bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas casino. In the course of those taps, the agents overheard conversations between Paul and petitioner Gelbard and between Zarowitz and petitioner Parnas. Petitioners were subsequently called before a federal grand jury convened in Los Angeles to investigate possible violations of federal gambling laws. The Government asserted that petitioners would be questioned about third parties and that the questions would be based upon petitioners' intercepted telephone conversations. Petitioners appeared before the grand jury, but declined to answer any questions based upon their intercepted conversations until they were afforded an opportunity to challenge the legality of the interceptions. Following a hearing, the United States District Court for the Central District of California found petitioners in contempt and, pursuant to 28

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U.S.C. § 1826(a), committed them to custody for the life of the grand jury or until they answered the questions.

No. 71—263. Respondents Egan and Walsh were called before a federal grand jury convened in Harrisburg, Pennsylvania, to investigate, among other possible crimes, an alleged plot to kidnap a Government official. Pursuant to 18 U.S.C. § 2514, both respondents were granted transactional immunity in return for their testimony. Respondents appeared before the grand jury, but refused to answer questions on the ground, among others, that the questions were based upon information overheard from respondents by means of the Government's illegal wiretapping and electronic surveillance. The Government did not reply to respondents' allegations.⁴ Following a hearing, the United States District Court for the Middle District of Pennsylvania found respondents in contempt, and they were also committed to custody pursuant to 28 U.S.C. § 1826(a).

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

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I

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, 92 S.Ct. 2125, 2128—2131, 32 L.Ed.2d 752. Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. 18 U.S.C. § 2516, 2518(1)—(8). If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. 18 U.S.C. § 2517. Except as expressly authorized in Title III, however, all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes, 18 U.S.C. § 2511(1), and the victim of such interception, disclosure, or use is entitled to recover civil damages, 18 U.S.C. § 2520. Title III also bars the use as evidence before official bodies of the contents and fruits of illegal interceptions, 18 U.S.C. § 2515, and provides procedures for moving to suppress such evidence in various proceedings, 18 U.S.C. § 2518(9)—(10).

The witnesses in these cases were held in contempt for disobeying court orders by refusing to produce evidence—their testimony—before grand juries. Consequently, their primary contention is that § 2515, the evidentiary prohibition of Title III, afforded them a defense to the contempt charges. In addressing that contention, we must assume, in the present posture of

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these cases, that the Government has intercepted communications of the witnesses and that the testimony the Government seeks from them would be, within the meaning of § 2515, 'evidence derived' from the intercepted communications. We must also assume that the communications were not intercepted in accordance with the specified procedures and thus that the witnesses' potential testimony would be 'disclosure' in violation of Title III. See 18 U.S.C. §§ 2511(1), 2517(3). In short, we proceed on the premise that § 2515 prohibits the presentation to grand juries of the compelled testimony of these witnesses.

The narrow question, then, is whether under these circumstances the witnesses may invoke the prohibition of § 2515 as a defense to contempt charges brought on the basis of their refusal to obey court orders to testify. We think they may.

The unequivocal language of § 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information:

'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 and oral communications should further be limited to certain types of offenses and specific categories of crime with assurances that the interception is justified and that the information

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obtained thereby will not be misused.' § 801(d), 82 Stat. 211.⁶

The Senate committee report that accompanied Title III underscores the congressional policy:

'Title III has as it 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); U.S.Code Cong. & Admin.News, p. 2153. Hence, although Title...