Meisel v. United States

• Decision Date: 18 June 1973
• Docket Number: No. 72-1350,72-1350
• Parties: Robert Keelan MEISEL, Jr. and Barbara Jean Fitch v. UNITED STATES
• Court: U.S. Supreme Court

412 U.S. 954

93 S.Ct. 3003

37 L.Ed.2d 1007

Robert Keelan MEISEL, Jr. and Barbara Jean Fitch

v UNITED STATES.

No. 72-1350.

Supreme Court of the United States

June 18, 1973

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

Electronic surveillance has increasingly infected criminal trials. My hearing in the Pentagon Papers case last summer (Russo v. Byrne, 409 U.S. 1219, 93 S.Ct. 21, 34 L.Ed.2d 30; 409 U.S. 1013, 93 S.Ct. 433, 34 L.Ed.2d 307), was the beginning of vast disclosures which showed how seriously that trial had in fact been infected. The indictments involved in it were indeed later dismissed, in part on the grounds that the prosecution failed to disclose the existence and results of wiretaps.

It has become painfully apparent that wiretapping and electronic surveillance are a commonplace tool of those who pursue prosecution with zeal that knows no bounds, not even the clear mandate of our Constitution or laws. The Nation early eschewed this Machiavellian philosophy.

'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of right and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (Brandeis, J., dissenting).

This case presents a related facet of the problem in Russo v. Byrne, supra. Here we are concerned with witnesses called to testify before the grand jury. See Tierney v. United States, 409 U.S. 1232, 93 S.Ct. 17, 34 L.Ed.2d 37 (Douglas, J., dissenting from denial of certiorari). This particular grand jury was investigating firearms transactions between certain Irish-Americans and the Irish Republican Army. The center of attention apparently was one Charles Farrell Malone, who, subsequent to the proceedings below, pleaded guilty to a federal firearms offense. Petitioners, one a friend of Malone's and the other a babysitter for his seven children, were subpoenaed to appear before the grand jury on October 25 and 26, 1972. Both appeared but refused to testify. Approximately one month later, the Government advised petitioners' counsel that it would apply for an order granting petitioners testimonial immunity, see 18 U.S.C. § 6003, and in the event immunity were granted and petitioners still refused to testify, it would seek immediately to have petitioners held in contempt.

On November 28 petitioners were granted immunity, and the same morning they were brought before the grand jury. They refused to testify on the grounds, inter alia, that the questions propounded to them were the product of illegal electronic surveillance of themselves and their attorney.¹ The contempt hearing took place at 2 p. m. that afternoon. Petitioners again asserted that they had been subject to illegal electronic surveillance, and they submitted an affidavit of their attorney claiming that his telephones had been wiretapped. The Government attorney filed affidavits disclaiming any surveillance upon petitioners or their premises. The affiant also stated that he knew 'the identity of all the sources of information upon which the questioning of [petitioners] is based and no questions asked are the result of electronic surveillance . . ..' The Government did not specifically respond to the allegation that the attorney has been subject to surveillance.

Based upon these affidavits and oral argument, the District Court held petitioners in civil contempt. The District Judge refused to hold a hearing regarding the claims of electronic surveillance and wiretapping or to require the Government to search its files to assure the nonexistence of electronic surveillance on their attorney. Bail was denied, and petitioners were ordered to jail for the life of the grand jury but not to exceed 18 months. The Court of Appeals, however, granted bail pending appeal. On December 29, 1972 the Court of Appeals affirmed the contempt adjudications and revoked bail. I ordered that petitioners be released on their...