Pitcher v. US ATTORNEY, Misc. No. 623.

• Decision Date: 30 November 1961
• Docket Number: Misc. No. 623.
• Citation: 199 F. Supp. 862
• Parties: Sargent PITCHER, Mover v. U. S. ATTORNEY, and Grand Jury Investigating Wiretapping.
• Court: U.S. District Court — Eastern District of Louisiana

199 F. Supp. 862

Sargent PITCHER, Mover v. U. S. ATTORNEY, and Grand Jury Investigating Wiretapping.

Misc. No. 623.

United States District Court E. D. Louisiana.

November 30, 1961.

Sargent Pitcher, Jr., in pro. per., Baton Rouge, La., Sam J. D'Amico, James H. Hynes, Baton Rouge, La., for mover.

M. Hepburn Many, U. S. Atty., New Orleans, La., for the United States.

WEST, District Judge.

On November 13, 1961, a subpoena and subpoena duces tecum issued out of the United States District Court for the Eastern District of Louisiana, upon the application of the United States of America, directed to "Sargent Pitcher, District Attorney's Office, East Baton Rouge Parish, Baton Rouge, Louisiana". This was a subpoena to appear before a Federal grand jury in New Orleans, Louisiana, on November 17, 1961, to testify, and to produce certain records, documents, etc. of the office of the District Attorney for East Baton Rouge Parish, Louisiana. The Federal grand jury was, at that time, investigating possible criminal violations of Title 47, Sec. 605, of the U. S. Code annotated, pertaining to unauthorized interception and divulgence of telephonic communications. The subpoena, in part, read as follows:

"To Sargent Pitcher, District Attorney's Office, East Baton Rouge Parish, Baton Rouge, Louisiana

"You are hereby commanded to appear in the United States District Court for the Eastern District of Louisiana at Room 362 Post Office Building in the City of New Orleans, La. on the 17th day of November 1961 at 10:00 o'clock a. m. to testify before the Grand Jury and bring with you the following:

"All taped or other recordings, or transcripts of such recordings, and all records of the office of the District Attorney for East Baton Rouge Parish, including checks, vouchers, other financial records, investigation instructions and reports, memoranda, correspondence, etc., bearing on or relevant to intercepted telephone conversations involving Rabbi Norman Reznikoff, Rev. Irvin Cheney and Wade Mackie.

"This subpoena is issued on the application of the United States of America."

Immediately upon being served with this subpoena, on November 15, 1961, the District Attorney, Sargent Pitcher, Jr., filed with this Court a motion to quash, vacate and set aside the subpoena and subpoena duces tecum. Pursuant thereto, this Court, on the same day, issued an order to the United States Attorney for the Eastern District of Louisiana to show cause, if any he could, on December 1, 1961, why the subpoena and the subpoena duces tecum directed to Mr. Pitcher, the District Attorney for the Parish of East Baton Rouge, Louisiana, should not be "quashed, annulled and set aside" and further ordered that the said Mr. Pitcher was not required to appear before the grand jury pursuant to said subpoena until further order of this Court.

Thereafter, by consent of counsel, the hearing date was advanced to November 20, 1961, on which date full and complete arguments of both parties were heard by the Court. After argument, the matter was submitted to the Court, with both parties being ordered to submit written briefs in support of their contentions. Briefs were thereafter submitted and filed in the record.

In oral argument and in brief, the mover, Mr. Pitcher, contends that he, in his official capacity as District Attorney for the Parish of East Baton Rouge, State of Louisiana, should not be required to appear before the Federal grand jury, nor should he be required to present any records, documents, etc. of his office to the grand jury because (1) wiretapping is a State crime under the law of Louisiana; (2) the testimony sought pertains to violations of State law and is within "the province and jurisdiction of the State District Attorney; (3) the subpoenas are an "improper, unwarranted and unconstitutional attempt to invade and interfere with" the official business and affairs of the District Attorney of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana; (4) the jurisdiction of mover's office to investigate and prosecute criminal matters in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, is "superior to if not at least equal to that exercised by the United States Attorney", and thus his office should be protected from "unwarranted interference and harrassment"; (5) to testify would require him to reveal the identity of "informers" and that mover has a privilege with regard to such information; (6) the subpoenas are "too indefinite, broad and general" in their terms; (7) the subpoenas constitute an "unlawful and unreasonable search and seizure"; (8) there is no showing of "materiality or pertinence" of the documents requested; and (9) neither he, nor any member of his staff, participated in any wiretapping. Also, in a supplemental brief filed by mover, it is further argued that Sec. 605 of the Federal Communications Act of 1934, in connection with which the grand jury investigation was conducted, is unconstitutional and thus the grand jury had no valid or constitutional act to support its investigation and hence had no right to issue the subpoena in question or to even investigate possible alleged violations of an unconstitutional act. This contention is based on the allegation that Sec. 605 of the Federal Communications Act of 1934 is "too vague and indefinite to support a criminal indictment or investigation and is thus unconstitutional".

After careful consideration of the issues presented, this Court concludes that there is not sufficient merit to the arguments of mover to justify this Court in annulling or quashing the subpoena in question. On the contrary, there seems to be ample authorities to support the conclusion that a ...