In re Korman, 71 GJ 600.

• Decision Date: 17 August 1972
• Docket Number: No. 71 GJ 600.,71 GJ 600.
• Parties: In re Jack KORMAN, and Robert W. Likas, Witnesses, Before the Special February 1971 Grand Jury.
• Court: U.S. District Court — Northern District of Illinois

351 F. Supp. 325

In re Jack KORMAN,

and

Robert W. Likas, Witnesses, Before the Special February 1971 Grand Jury.

No. 71 GJ 600.

United States District Court, N. D. Illinois, E. D.

August 17, 1972.

Anna R. Lavin, George F. Callaghan, Edward J. Calihan, Jr., Chicago, Ill.

James R. Thompson, U. S. Atty., N. D. Ill., Chicago, Ill.

MEMORANDUM OPINION AND ORDER

PARSONS, District Judge.

This Motion for Production of Reports of Electronic Surveillance comes before me today as an emergency matter which demands that it be decided under the most expeditious of circumstances.

Movants ask that the Government be required to disclose reports and transcripts of any electronic or mechanical surveillance obtained as to them maintaining that Grand Jury witnesses are entitled to invoke the statutory prohibition against use before the Grand Jury of evidence derived from interception of any wire or oral communications. In re Egan, 3 Cir., 450 F.2d 199; In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239 (affirmed sub nom Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357; 33 L.Ed.2d 179.)

Movants made inquiry of the Solicitor General as to whether there had been electronic or mechanical surveillance in this case. Movants' Exhibits 1 and 2 are the Letters to the Solicitor General and the Acting Solicitor General's reply in which he states that:

"Since, unlike the situation in Egan, no claim was raised in the district court in this case that electronic surveillance justified the respondent's refusal to testify before the grand jury, and since that issue is not before the Supreme Court, there is no occasion for the government to make any inquiry respecting such surveillance. I therefore cannot accede to your request."

Movants assert "that forthright acknowledgment or denial of such inquiry has been the practice" and in light of the Acting Solicitor General's response the movants reasonably believe they have, in fact been subjected to electronic or mechanical surveillance.

They believe that the questions asked of them before the Special February 1971 Grand Jury were based upon information overheard from them by means of the Government's illegal wiretapping and electronic surveillance.

Movants claim the protection and invoke the prohibition upon such use as defined in Title 18, U.S.C., Sections 2515¹ and 3504² (part of) and contend that if they are required to testify in order to purge themselves of the contempt citation it would be violative of Sections 2515 and 3504.

They, therefore, ask that this Court stay the mittimus herein, pending their obtaining the necessary information from the Government and a hearing thereon.

The Government's Response to this Motion is a copy of a letter dated August 7, 1972 from the Department of Justice addressed to Mr. Sheldon Davidson, the Attorney in Charge of the Chicago Strike Force, and is in response to a request by Mr. Davidson for ascertainment of whether the movants were monitored by electronic surveillance. That letter states in part:

"A review of the Department of Justice files discloses no information indicating that conversations of Robert W. Likas and Jack Korman were at any time overheard by electronic surveillance or that premises known to be owned, leased, or licensed by them were covered by electronic surveillance by the Federal Bureau of Investigation.

"The Internal Revenue Service did utilize pen register surveillance from February 8 to May 22, 1963, of telephone numbers 423-7800, 423-7801, and 423-7802. These telephones were listed at 9530 South Merrimac, Columbia, Illinois, a suspected wire room operated by Robert Likas. Mr. Likas has not been the subject of any other electronic surveillance conducted by the Internal Revenue Service. No conversations in which he participated have been intercepted, overheard or recorded by the Internal Revenue Service. The original pen register tapes of this surveillance are not available, but the transcripts of the pen register tapes can be made available to you, if needed. * * *

"On October 20, 1961, an Inspector listened by an extension telephone to a conversation between P. Stollman and an individual identified as Jack Korman. This call was monitored at Stollman's office, 22100 Greenfield, Detroit, with Stollman's consent. On October 18, 1961, a telephone conversation between P. Stollman and Jack Korman was also monitored by an Inspector at Stollman's office, with Stollman's consent. Nothing significant developed from these conversations and the Internal Revenue Service case was closed. Mr. Korman has not been the subject of any other electronic surveillance conducted by the Internal Revenue Service, and no conversations in which he participated have been intercepted, overheard, or recorded by the Internal Revenue Service, other than the above-mentioned monitorings.

"The above-named individuals were never subjected to electronic surveillance by the United States Secret Service, the United States Postal Service, the Bureau of Alcohol, Tobacco and Firearms, or the Bureau of Narcotics and Dangerous Drugs."

Sincerely Henry E. Petersen Assistant Attorney General Criminal Division By: (signature of William S. Lynch) William S. Lynch Chief, Organized Crime and Racketeering Section

The Government in its oral argument asserted that the cases are clear that the use of a pen register does not constitute an "interception" within the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. The Legislative History of that Act, Senate Report No. 1097, paragraph (4) defines "intercept" and states that:

"The proposed legislation is not designed to prevent the tracing of phone calls. The use of a `pen register' for example would be permissible. But see U. S. v. Dote, 371 F.2d 176 (7th 1966). The proposed legislation is intended to protect the privacy of the communication itself and not the means of communication." 1968 U.S. Code Cong. & Admin.News, p. 2178

That a "pen register" is not an "interception" under § 2510 and that the requirements of that statute do not apply statutorily to pen...