In re Evans

Decision Date23 July 1971
Docket Number71-1521.,No. 71-1499,71-1499
PartiesIn Re Carol EVANS, Appellant. UNITED STATES of America v. VIOLATIONS OF 18 U.S.C. SECTIONS 231, 241, 245, 371, 1361, 2101, 2102, and other violations, Marlene Renee Fishlowitz, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Philip Hirschkop, Alexandria, Va., for appellants. Mr. Peter Weisman, a member of the bar of the Supreme Court of New York, pro hac vice, by special leave of Court, was also allowed to argue for appellant in No. 71-1499.

Mr. Robert L. Keuch, Atty., Department of Justice, Washington, D. C., for appellee.

Before BAZELON, Chief Judge, and WRIGHT and WILKEY, Circuit Judges.

BAZELON, Chief Judge :

This appeal requires us to resolve a sharp conflict between the power of a grand jury to extract testimony from a recalcitrant witness, and the power of a witness to withhold testimony on the basis of her fourth and fifth amendment rights. The interests on both sides are clearly substantial. While the protections afforded by the fourth and fifth amendments have been acknowledged and nourished by numerous decisions, it is no less clear that the grand jury's effectiveness as a vehicle for investigating crime can be significantly impaired by unwarranted judicial interference. Indeed, one indication of Congress's desire to avoid such unnecessary impairment is the statutory provision which permits us no more than thirty days to resolve appeals of this sort.1 The precise question presented is one of first impression before this Court. Within the past several months, however, the right of a witness to withhold testimony has been considered by a number of other circuits.2 Here, as in the analogous cases, appellants sought shelter under the fourth and fifth amendments as well as the wiretap provisions of the 1968 Omnibus Crime Control Act3 in steadfastly refusing to answer any of the grand jury's questions. The District Court rejected appellants' constitutional and statutory arguments and held both of them in contempt. Even in view of the unquestioned interest in efficiency of grand jury proceedings, we find merit in appellants' contentions and therefore reverse the District Court's judgment.


Appellants Carol Evans and Marlene Fishlowitz4 were each subpoenaed to appear before a federal grand jury sitting in the District of Columbia. At her first appearance on June 8, Miss Evans refused to testify, insisting that the grand jury's questions were the fruit of an unlawful wiretap. On June 15 Miss Evans was ordered to testify by Chief Judge Sirica of the District Court, but on her return to the grand jury she persisted in refusing to answer the following questions : (1) Have you now or ever had any connection with the People's Coalition for Peace and Justice? (2) What is the May Day Collective and have you ever been a member of that collective, or had any connection with the Collective? (3) Have you ever traveled for, or on behalf of, the People's Coalition for Peace and Justice? (4) Have you ever attended any meetings of members of the May Day Collective in which the May Action Activities were discussed? Because of her assertion of the fifth amendment privilege against self-incrimination, Miss Evans was granted immunity under 18 U.S.C. § 2514 (1970) on June 22. Upon her continued refusal to answer the government's questions she was found in civil contempt, 28 U.S.C. § 1826 (1970), by Chief Judge Sirica. Appellant filed an immediate notice of appeal with this Court, and we ordered her released pending the appeal.5

The facts with regard to Marlene Fishlowitz are similar. On June 15 she made a motion before Judge Parker of the District Court for disclosure of the government's alleged electronic surveillance against her and to quash the grand jury's subpoena. Judge Parker initially granted her motion, but on June 17 directed that his own order be vacated in view of Rule 77(K) (3) of the District Court which provides that the Chief Judge shall "* * * determine all matters relating to proceedings before the grand jury." On June 29 Chief Judge Sirica denied Miss Fishlowitz's motion, and she appeared before the grand jury on that date. On the basis of several objections, including arguments under the fourth and fifth amendments, Miss Fishlowitz refused to answer any questions. She was granted immunity under § 2514 on the morning of June 30, but continued to resist answering the following questions : (1) Have you ever been a member of the May Day Collective or the People's Coalition for Peace and Justice ? (2) Have you ever traveled for or on behalf of the People's Coalition for Peace and Justice or the May Day Collective? (3) Do you know Rene Davis or John Froines? (4) Have you ever attended any meetings or gatherings with Rene Davis or John Froines where the activities of May 3, 1971, were discussed? On that same day Chief Judge Sirica declared appellant in civil contempt under 28 U.S.C. § 1826. Like Miss Evans, she was released pending appeal pursuant to our order.6


In defending their refusal to answer the grand jury's questions, both appellants submitted affidavits stating their belief that wiretapping and electronic surveillance had been directed against them and that the grand jury's subpoenas and questions were the fruit of that wiretap. If appellants had presented these assertions in the context of a criminal trial in which they were defendants, there would be no dispute over the procedure to be followed. Under 18 U.S.C. § 2518(10) (a)7 appellants would be permitted to move for the suppression of evidence derived from an unlawful interception of wire or oral communications. The motion to suppress would provide appellants with a remedy to protect the right embodied in 18 U.S.C. § 2515,8 which flatly prohibits the introduction of evidence derived from an unlawful wiretap in any trial, hearing, or similar proceeding. And on the basis of appellant's mere assertion that an unlawful interception had been conducted, the government would be required to affirm or deny the occurrence of the alleged wiretap. 18 U.S.C. § 3504.9 Still, the government insists that none of these procedures are available to these appellants because they were not defendants in a criminal prosecution, but merely witnesses before a grand jury.10 Furthermore, since they have both been granted immunity from prosecution they are not even potential defendants. The question, therefore, is whether the Omnibus Crime Control Act of 1968 should be interpreted in such a manner that the protections it provides to those who are victimized by unlawful electronic searches would not be available to a "mere witness." While a number of circuits have purported to decide the question, the en banc decision of the Third Circuit in In re Egan11 is directly in point,12 and it offers the only sensitive and penetrating analysis of the statute. While I cannot accept all of the assertions in the two opinions which announced the judgment of the court,13 I am persuaded by much of the court's reasoning.

The premise on which our interpretation of the statute must be based is a proper understanding of the statute's purposes. In enacting the wiretap provisions of the Omnibus Crime Control Act, Congress plainly recognized the dangers inherent in the interception of wire and oral communications. The language of the statute as well as the statement of Congressional findings and legislative history are replete with indications of Congress's concern with these dangers.14 The Act's essential purpose, in our opinion, was to combine a limited and carefully articulated grant of power to intercept communications with an elaborate set of safeguards to deter abuse and to expunge its effects in the event that it should occur. It is thus important to keep in mind not only the powers that Congress was willing to grant, but also those that it refused to make available despite the needs of law enforcement. Moreover, since the Act's prohibitions and limitations were designed, in our view, as a precondition to the acceptability of any wiretapping at all, we must enforce them zealously or else throw Congress's entire conception into jeopardy.

There are two provisions of the Act which could be interpreted so as to provide the relief appellants seek. Faced with a comparable choice, a majority of the Third Circuit read § 2515 to permit a witness to withhold testimony where questions propounded by the grand jury were tainted by an unlawful wiretap. By relying on the flat prohibition of § 2515, the majority could avoid decision on the interpretation of § 2518(10) (a). Only two judges expressed the view that a motion to suppress tainted evidence under § 2518(10) (a) could be made by a witness in a grand jury proceeding. While I am sympathetic to the majority's effort to base the decision on the narrowest possible ground, and while I am inclined to accept the majority's interpretation of § 2515, I believe that § 2518(10) (a) offers a stronger ground for decision.

In his concurring opinion in Egan, Judge Rosenn builds a substantial case in favor of the interpretation of § 2515 urged by appellants Evans and Fishlowitz. I see no need to reiterate here the steps in his analysis. I should comment, however, on two difficulties that he did not consider.

First, § 2515 describes in the most sweeping possible terms a prohibition against the use of evidence tainted by an unlawful wiretap. But the section gives no indication of a specific remedy by which this prohibition is to be enforced. Viewed as a whole, however, the Omnibus Crime Control Act does provide such a remedy—the motion to suppress authorized by § 2518(10) (a). Moreover, the committee report which accompanied the Act explicitly indicated the committee's expectation that § 2518(10) (a) would be read as the remedy for, and hence limitation on, the "right" created by § 2515.15 Because...

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