Gelbard v. United States
408 U.S. 41, 1972 U.S. LEXIS 103, 33 L. Ed. 2d 179 (1972)
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Rule of Law:
A witness subpoenaed to testify before a grand jury may invoke 18 U.S.C. § 2515 as a defense to a civil contempt charge for refusing to testify. A showing that the interrogation would be based upon the illegal interception of the witness's communications constitutes "just cause" under 28 U.S.C. § 1826(a) for refusing to comply with a court order to testify.
Facts:
- Federal agents, using wiretaps, overheard conversations involving David Gelbard and Sidney Parnas.
- The wiretaps which intercepted Gelbard's and Parnas's conversations targeted an alleged bookmaker, Perry Paul, and a former casino executive, Jerome Zarowitz.
- Gelbard and Parnas were subsequently subpoenaed to testify before a federal grand jury in Los Angeles investigating possible violations of federal gambling laws.
- The government informed Gelbard and Parnas that the questions they would be asked would be based upon their intercepted telephone conversations.
- In a separate case, Joques Egan and Anne Walsh were subpoenaed to testify before a federal grand jury in Harrisburg, Pennsylvania, investigating an alleged plot to kidnap a government official.
- Egan and Walsh were granted transactional immunity in exchange for their testimony.
- When questioned, Egan and Walsh alleged that the questions were based upon information overheard by the government through illegal wiretapping and electronic surveillance.
Procedural Posture:
- In No. 71-110, Gelbard and Parnas refused to testify and were held in civil contempt by the United States District Court for the Central District of California.
- The United States Court of Appeals for the Ninth Circuit affirmed the District Court's contempt orders against Gelbard and Parnas.
- In No. 71-263, Egan and Walsh refused to testify and were held in civil contempt by the United States District Court for the Middle District of Pennsylvania.
- The United States Court of Appeals for the Third Circuit, sitting en banc, reversed the District Court's contempt orders against Egan and Walsh.
- The United States Supreme Court granted certiorari in both cases to resolve the conflict between the circuits.
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Issue:
Does a grand jury witness have "just cause" under 28 U.S.C. § 1826(a) to refuse to testify on the grounds that the interrogation is based on evidence obtained from an illegal wiretap, the use of which in a grand jury proceeding is prohibited by 18 U.S.C. § 2515?
Opinions:
Majority - Mr. Justice Brennan
Yes. A grand jury witness has just cause to refuse to testify if the questions are based on illegally intercepted communications. Section 2515 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 unequivocally prohibits the use of evidence derived from illegal wiretaps in any grand jury proceeding. To hold a witness in contempt for refusing to provide such testimony would subvert the statute's dual purpose of protecting individual privacy and safeguarding the integrity of court proceedings. Compelling the testimony would compound the illegal invasion of privacy by adding the insult of compelled disclosure. This conclusion is reinforced by 18 U.S.C. § 3504, which requires the government to affirm or deny the existence of surveillance upon a witness's claim, indicating Congress anticipated such a defense would be available. The omission of grand jury proceedings from the suppression motion provision of § 2518(10)(a) was intended to prevent defendants from disrupting investigations, not to compel witnesses to participate in the use of illegal evidence.
Dissenting - Mr. Justice Rehnquist
No. A grand jury witness does not have just cause to refuse to testify based on an allegation of illegal wiretapping. The statute's specific provision for suppression motions, § 2518(10)(a), conspicuously omits grand jury proceedings, which demonstrates a clear congressional intent to exclude them from such challenges. This specific omission should control over the general prohibition in § 2515. The legislative history explicitly states an intent not to change the general rule that individuals cannot challenge the character of evidence before a grand jury. Allowing witnesses to launch full-scale suppression hearings would disrupt and delay the grand jury's essential investigative function, a sharp break from its historical role. The witnesses are not left without a remedy; they can pursue civil damages or encourage criminal prosecution against the offending officials.
Concurring - Mr. Justice Douglas
Yes. While joining the Court's statutory analysis, the Fourth Amendment independently shields a grand jury witness from any question based on information obtained from unconstitutional searches of their own communications. Citing the precedent of Silverthorne Lumber Co. v. United States, the government cannot be allowed to use the fruits of its own illegal actions at all. Allowing courts to compel testimony based on such 'dirty business' degrades the integrity of the judicial system and would cripple enforcement of the Fourth Amendment, as many victims of surveillance who are not targets of prosecution would otherwise have no effective remedy.
Concurring - Mr. Justice White
Yes. A witness has just cause to refuse to testify where the government has intercepted communications without a warrant when one was required, as this furthers the plain policy of the wiretap statute. However, a different balance may need to be struck where the government produces a court order for the interception. In such cases, allowing a full-blown suppression hearing would cause protracted interruptions of grand jury proceedings, and the deterrent value of excluding the evidence is marginal since officials relied on a court order. This latter issue should be left open for consideration by the district court on remand.
Analysis:
This decision establishes a significant procedural right for grand jury witnesses, creating an important exception to the traditional rule that grand jury proceedings are not subject to evidentiary challenges by witnesses. It empowers the victims of illegal surveillance to enforce the prohibitions of Title III directly by providing them with a defense to contempt charges, thereby giving the statute's exclusionary rule (§ 2515) practical effect within the grand jury context. The ruling reinforces the congressional goal of protecting privacy by ensuring that courts do not become complicit in the use of illegally obtained evidence. It forces the government to be accountable for its surveillance methods when it seeks to compel testimony based on them.
