decided: May 28, 1971; As Amended June 16, 1971.
Reargued En Banc April 5, 1971.
Forman, Aldisert and Gibbons, Circuit Judges. Hastie, Chief Judge, and Forman,*fn* Seitz, Van Dusen, Aldisert, Adams, Gibbons and Rosenn, Circuit Judges. Hastie, Chief Judge, joins in the opinion. Seitz, Circuit Judge, concurs in the result based on Part II of this opinion. Van Dusen, Circuit Judge, concurs in Part II of this opinion only, since he believes that courts should avoid decision of constitutional questions wherever possible, and should ordinarily decide cases on the narrowest possible ground. Rosenn, Circuit Judge, in addition to filing a separate concurring opinion, joins in Part II of this opinion. Rosenn, Circuit Judge (concurring). Gibbons, Circuit Judge (dissenting). Forman, Circuit Judge (dissenting).
The primary issue raised by this appeal is whether a citizen who is summoned before a grand jury may object to questions based on information obtained through allegedly illegal and indeed unconstitutional wiretapping directed against the witness. Because of the great importance of what is at stake here -- not only the interpretation of provisions of the Omnibus Crime Control and Safe Streets Act dealing with unauthorized electronic surveillance, but also the Fourth Amendment -- we are constrained to set forth our views in some detail.
We begin with the reminder that the basic purpose of the Fourth Amendment, recognized by countless decisions of the Supreme Court, is to safeguard the privacy and security of citizens against arbitrary invasions by governmental officials. It thus gives concrete expression to a right of the people basic to a free society.*fn1
Sister Joques Egan, a member of the Order of Sacred Heart, was called before a federal grand jury in the early afternoon of January 14th in connection with an investigation into an alleged plot to kidnap a high public official and other offenses. An indictment naming six defendants had been handed down several days before, and it had named Sister Egan as an alleged co-conspirator, but not as a co-defendant.*fn2 Immediately following her refusal to testify on Fifth Amendment grounds, her counsel was served by the Government with an application for immunity pursuant to 18 U.S.C.A. § 6003 of the Organized Crime Control Act of 1970.
The District Court held an immediate hearing on this first immunity application. During the course of the hearing, counsel for appellant argued that the constitutionality of § 6003 was subject to serious doubt, repeatedly asked the Court for sufficient time to prepare and file a brief, and also sought an opportunity to make a motion to suppress. The Government asserted that the validity of § 6003 was assured, and that any delay in granting the application would impede the progress of the grand jury. At the close of argument, the Court allowed counsel until the following day, January 15th, to file additional legal memoranda. The next morning, counsel argued that because the Act of 1970 provided solely for "use," as distinguished from "transactional," immunity, it was unconstitutional. The Court adjourned until January 25th. On January 25th, the Court granted the application for immunity under § 6003, and Sister Egan was directed to be available for examination the next morning, January 26th.
Contrary to the Court's instruction, and in direct reversal of the Government's announced intention, appellant was not called before the grand jury on January 26th. Instead, the Government served counsel with an application for a grant of "transactional immunity" under 18 U.S.C.A. § 2514, the Omnibus Crime Control and Safe Streets Act of 1968, stating that the Court would hear this new application "immediately."*fn3
Appellant's counsel, having had the new application for only fifteen minutes, asked for adequate time to prepare to argue the applicability and the constitutionality of § 2514 of the 1968 Act. Indeed the undated authorization letter from the Assistant Attorney General was not shown to Sister Egan's counsel until all parties were in the courtroom for the hearing. The Court refused to give defense counsel the opportunity to argue the applicability of § 2514, and instead immediately signed the order granting immunity and requiring Sister Egan to appear before the grand jury forthwith. Sister Egan's counsel, together with the Government attorney, went to the Court's chambers and made additional objections both to the applicability of § 2514 and the lack of adequate notice and time to prepare argument.*fn4 The Court overruled all the objections made by Sister Egan's counsel, but did acknowledge the shortness of time permitted counsel to prepare for the hearing.
Before the grand jury once again, Sister Egan refused to testify on several grounds,*fn5 one of which is her primary contention on appeal -- that the information which caused the Government to subpoena her and which prompted the questions propounded to her flowed from illegal wiretapping and electronic surveillance.
On January 26, 1971 -- minutes after her refusal to testify -- appellant was brought back before the Court and, after being instructed to answer the questions and refusing to answer them, was held in contempt. Appellant stated to the Court she was not being disrespectful, but that in addition to the legal grounds already set forth her conscience compelled her not to answer. The Court ordered that she be held in prison until she testified or until the end of the life of the grand jury.
Thereafter, on Sister Egan's application, this Court granted bail until it could decide the appeal on the merits. Without hearing further oral argument, the Court proceded on March 2, 1971 to affirm the judgment of contempt. Sister Egan then filed a petition for rehearing, and the Court en banc heard argument on April 5, 1971.*fn6
The Government did not suggest during reargument before the Court en banc, or at any time in this proceeding, that it did not employ wiretaps nor that any electronic surveillance that may have been utilized was authorized by court order. Since Sister Egan has not yet been afforded a hearing regarding her allegations of illegal electronic surveillance by the Government, for the purpose of this appeal we assume her allegations to be true.
Three primary issues are raised by this case: first, whether the procedure provided by 18 U.S.C.A. § 2518(10)(a) for the suppression of evidence derived from illegally intercepted communications is available to Sister Egan under the present circumstances; second, whether a district court may order Sister Egan to testify before a grand jury, if such testimony would violate an express congressional prohibition; third, whether Sister Egan has a constitutional right to refuse to answer questions propounded to her before a grand jury when the basis for the questions is electronic surveillance of her conducted by the Government in violation of the Fourth Amendment.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is applicable to the first issue raised by Sister Egan. Section 2515 of the Act, 18 U.S.C.A. § 2515, provides:
"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter." (emphasis supplied).
Section 2515 is an unequivocal bar to questioning one before a grand jury if the questions are derived from electronic surveillance conducted in the absence of a properly issued warrant and aimed at the witness, if the witness himself objects to the interrogation. See 18 U.S.C.A. § 2511, § 2516, § 2518. The prohibition of § 2515 is in accord with Congressional findings set forth in § 801 of the Act of 1968, which explain that the purpose of Title III of the Act is, inter alia, "to protect effectively the privacy of wire and oral communications" and "the integrity of court and administrative proceedings."*fn7
In his dissent, Judge Gibbons interprets this view as meaning that if illegal wiretaps are used against A, then A himself is precluded from voluntarily revealing the contents of the overheard communication. We do not so read § 2511(1) (c). Instead, we suggest that it unqualifiedly bars the party making the illegal tap ; not the party who has been victimized -- the "aggrieved party."
The Government contends, however, that although Congress in § 2515 specifically prohibited the disclosure to a grand jury of evidence derived from illegal wiretaps, nevertheless Congress excluded grand jury witnesses from availing themselves of the remedy provided by § 2518(10)(a). Section 2518(10)(a) states:
"Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that --
"(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval."
The initial requirement for the invocation of § 2518(10)(a) procedure is that the moving party be an "aggrieved person."
Section 2510(11) defines "aggrieved person" for the purpose of the Act of 1968 to mean "a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." Certainly, Sister Egan is an "aggrieved person" within the meaning of § 2510(11), because she alleges without contradiction that she "was a party to [an] intercepted wire or oral communication."
The fact that a grand jury hearing is not specifically listed in § 2518(10)(a) as a proceeding to which the section applies does not prevent Sister Egan from pursuing this statutory remedy. § 2518(10) (a) does not indicate that the listed proceedings are exclusively the ones for which the remedy is to be exercised. And in any event, § 2518(10)(a) states that a motion by an aggrieved person to suppress may be made regarding the introduction of evidence obtained by illegal wiretapping in "any * * * hearing, or proceeding * * * before any * * * authority of the United States." A grand jury is empanelled and proceeds under the "authority of the United States," and thus is included in the class of proceedings to which § 2518(10)(a) is applicable. See Hale v. Henkel, 201 U.S. 43, 66, 26 S. Ct. 370, 50 L. Ed. 652 (1906); Cobbledick v. United States, 309 U.S. 323, 327, 60 S. Ct. 540, 84 L. Ed. 783 (1940). Therefore, the Act of 1968 would appear to be clear in its mandate and application to the facts of this case.
Even if the absence of the phrase "grand jury" from § 2518(10)(a) is significant, such omission would appear to be overcome by § 702 of the Organized Crime Control Act of 1970, amending title 18 by adding a new section, § 3504.*fn8
In the course of contesting the right of Sister Egan to object to an interrogation based on information obtained by wiretaps Judge Gibbons refers to Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Goldstein v. United States, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312 (1942); and Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). None of these cases holds that a grand jury witness may not object to questions based on illegal wiretaps directed at the witness himself. In Jones, the defendant objected to the introduction of evidence obtained in violation of the Fourth Amendment. Although Jones was not the owner of the premises that were improperly searched, he was held to have had standing to object since he was the one at whom the search was directed. In Goldstein, the defendant sought to object to the introduction of evidence by two witnesses, whom the defendant claimed had been induced to testify because of illegal wiretaps directed at them (substantially the same problem covered in Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969).*fn9 In Nardone, the Supreme Court reversed a conviction because it was based in part upon evidence derived from illegal wiretaps.
To support the view that the exclusionary rule is available only to a party and not to a witness who appears before a grand jury, Judge Gibbons points to the Senate Report relating to § 2515 and emphasizes the reference in it to Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954). However, Walder at no place indicates that a witness before a grand jury who has been aggrieved by illegal wiretaps may not take steps to exclude such information. It merely holds that a defendant may not commit perjury and then use the Fourth Amendment as "a shield against contradiction of his untruths." Such principle is in no way applicable to Sister Egan.
Ordinarily, courts do not resort to the legislative history of an act in construing a statute such as this one which is clear on its face. In construing a Congressional enactment the Supreme Court said in United States v. Oregon, 366 U.S. 643, at 648, 81 S. Ct. 1278, 1281, 6 L. Ed. 2d 575, "Having concluded that the provisions of [the Act] are clear and unequivocal on their face, we find no need to resort to the legislative history of the Act." See also Essex County and Vicinity Dist. Council of Carpenters and Millwrights v. N. L. R. B., 332 F.2d 636, at 641 (1964). Nonetheless, it has been suggested here that the legislative history of the Act of 1968 expresses the Congressional intent more accurately than its explicit language. In particular it is contended that while admittedly Congress has forbidden evidence seized by illegal wiretaps to be used before a grand jury, nevertheless the Act's legislative history reveals that Congress did not intend to permit the remedy provided by § 2518(10)(a) to be raised by a grand jury witness.*fn10
We do not believe the legislative history is dispositive of the question whether Sister Egan may proceed pursuant to § 2518(10)(a) to secure a hearing regarding her allegation of illegal wiretaps. The legislative history is, to say the least, ambiguous.
The reference to United States v. Blue, 384 U.S. 251, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1965) and the expressed intention not to change the rule contained in Blue raise serious questions as to the meaning of the legislative history. The holding of Blue relevant to the present issue was merely that if the Government had submitted to a grand jury evidence obtained in violation of the Fifth Amendment, by itself such action did not entitle Blue to have an indictment dismissed. The rationale underlying Blue, as expressed by Justice Harlan, is that the exclusionary rule interdicts the use of tainted evidence, but "does not extend to barring the prosecution altogether." 384 at 255, 86 S. Ct. at 1419.*fn11 But see United States v. Tane, 329 F.2d 848 (2nd Cir. 1964).
Sister Egan, of course, is not attempting to have an indictment dismissed. Her complaint, unlike that of Blue, is that she has been called to testify before the grand jury as a result of the Government's improper wiretaps, and that had it not been for such wiretaps the Government would not be seeking to interrogate her. It is the grand jury's questioning itself which will create the harm of which she complains. In view of the express provision of § 2515 forbidding the use before a grand jury of the fruits of illegal wiretaps, it is highly unlikely that Congress intended to exclude grand jury witnesses who are also aggrieved persons within the meaning of the Act from the procedural remedy provided by § 2518(10)(a). The reference in the legislative history to Blue demonstrates at most a congressional intent to preclude an attack on a grand jury investigation by one whose interest in such investigation is not as a witness, but as a defendant, and instead to require such person to move for the exclusion of the questionable evidence after the indictment or at a time designated by the rules of criminal procedure.*fn12
Thus, when Congress stated that there was no intent to change the general rule contained in Blue, it was expressing a purpose not to alter the principle that Fifth Amendment grounds are an insufficient basis to quash an indictment. The context of the present case is substantially different from that of Blue, because Sister Egan is complaining of violations of her Fourth Amendment right, a right significantly different from that set forth in the Fifth Amendment.*fn13 She is not attempting to block an indictment that might be returned by the grand jury but rather is asserting her right as a citizen to vindicate her privilege which protects her from unreasonable searches and seizures, regardless whether she will ever be indicted.
The sentence which appears before the Blue citation in the legislative history -- " Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual."*fn14 -- implies that Congress recognized there might be exceptions to the general rule. Indeed, in certain circumstances where the compulsion of testimony in a grand jury proceeding would violate a constitutional statutory, or common law privilege of the grand jury witness, there are numerous precedents for permitting a witness to invoke the protections afforded by such privileges. E. g., Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); Blau v. United States, 340 U.S. 332, 71 S. Ct. 301, 95 L. Ed. 306 (1951); Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Dionisio v. United States, 442 F.2d 276 (7th Cir. 1971); Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), cert. granted, 402 U.S. 942, 91 S. Ct. 1616, 29 L. Ed. 2d 109 (1971). Although Congress expressed an intention to adhere to the "general rule," there is no basis for believing that it was excluding the usual exceptions to the general rule.
Blau v. United States, 340 U.S. 332, 71 S. Ct. 301, 95 L. Ed. 306 (1951) is especially appropriate in this regard. There, the petitioner was called before a grand jury investigating the activities of the Colorado Communist Party. When questioned regarding the whereabouts of his wife, Blau refused to answer, relying solely upon the privilege attaching to confidential communications between husband and wife. The district court, despite the assertion of the husband-wife privilege, sentenced Blau for contempt. The Supreme Court reversed on the ground that the husband-wife privilege shielded Blau from disclosing what was presumed to be a confidential communication from his wife. If a common law doctrine may support a grand jury witness's refusal to testify, it follows that an express statutory prohibition would require a similar result. Since Sister Egan was a party to the conversations monitored illegally, she has a personal interest in refusing to answer questions derived from the Government's illegal invasion of her privacy.
In short, while the legislative history regarding 2518(10)(a) is not completely clear, it appears to indicate an intent that one who has been illegally wiretapped but is not a witness called by the grand jury may not move to suppress; and that even a witness or defendant who objects to the use of illegal wiretaps in the proceedings may not move to quash the entire proceeding of even an indictment growing out of it.
The dissent takes the position that footnote 9 of Alderman v. United States, 394 U.S. 165, 175, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) demonstrates that the Supreme Court views the remedy provided by § 2518(10)(a) of the Act of 1968 as inapplicable to the circumstances of this case. Indeed, one of the main contentions in this case has been that footnote 9 of Alderman clearly indicates that § 2518(10) (a) does not confer standing upon one who is hailed before a grand jury and questioned on the basis of material obtained from the witness himself as a result of improper eavesdropping.
To understand more fully the implication of footnote 9, it is appropriate to review Alderman. The defendant there was convicted of a conspiracy to transmit threats in interstate commerce. Thereafter, he claimed he discovered that the evidence used to convict him was obtained as a result of illegal eavesdropping and petitioned the Supreme Court to remand the case so that the district court might hold a hearing to determine whether the surveillance was illegal and if so, whether the evidence introduced at his trial was so tainted as to vitiate the conviction. The Solicitor General conceded that wiretapping had been employed, but contended that no hearing was necessary because none of the conversations overheard was arguably relevant.
The Supreme Court held (1) that it could not rely on the representations of the Solicitor General regarding the relevancy of the material obtained by the wiretaps, but (2) that the "established principle is that suppression of the product of a Fourth Amendment violation could be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence" (emphasis supplied). 394 U.S. at 171-172, 89 S. Ct. at 965. Thus, the case was remanded for a district court hearing.
In the course of examining the proposition that Fourth Amendment protection is available only to the one whose personal rights have been violated, and not available to a third party, Justice White said:
"Of course, Congress or state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose." Footnote 9 394 U.S. at 175, 89 S. Ct. at 967-968.
Footnote 9 of Alderman reads as follows:
"9. Congress has not done so. In its recent wiretapping and eavesdropping legislation, Congress has provided only that an 'aggrieved person' may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a) 1964 ed., Supp. IV). The Act's legislative history indicates that 'aggrieved person,' the limiting phrase currently found in Fed.Rule Crim.Proc. 41(e), should be construed in accordance with existent standing rules. See S.Rep., No. 1097, 90th Cong., 2d Sess., at 91, 106."
Fed.Rules Crim.Proc. 41(e), referred to in footnote 9 of Alderman, provides as follows:
(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
In view of the language of Rule 41(e), it seems clear that what Justice White is saying is that in a criminal trial -- such as Alderman -- the defendant may object only if the illegal search was directed at him. If it was directed at a third party, however, such third party may protect himself, if he desires, by moving under Rule 41(e). In Grant v. United States, 282 F.2d 165, 168 (2nd Cir. 1960), IRS agents obtained from two physicians records and papers relating to income tax matters. Fearing that these records might lead to a grand jury investigation, the physicians moved, prior to indictment, under Rule 41(e) for the suppression of the documents. The District Court directed the Government to show cause why the physicians were not entitled to the return of their documents. The Government appealed and the Second Circuit stated that Rule 41(e) may be invoked by a citizen who has not been indicted and is not a party to a criminal proceeding. Judge Friendly, speaking for the Court, said:
"The classical exposition of the nature of [a rule 41(e) motion] is Judge Hough's statement in United States v. Maresca, 266 F. 713, 717 (S.D.N.Y. 1920):
"Whenever an officer of the court has in his possession or under his control books or papers, or (by parity of reasoning) any other articles in which the court has official interest, and of which any person (whether party to a pending litigation or not) has been unlawfully deprived, that person may petition the court for restitution. This I take to be an elementary principle, depending upon the inherent disciplinary power of any court of record.
"Attorneys are officers of the court, and the United States attorney does not by taking office escape from this species of professional discipline. Thus power to entertain this motion depends on the fact that the party proceeded against is an attorney, not that he is an official known as the United States Attorney. It is further true that the right to move does not at all depend on the existence of this indictment; it might be made, were no prosecution pending."*fn15
Likewise in Centracchio v. Garrity, 198 F.2d 382 (1st Cir.), cert. denied, 344 U.S. 866, 73 S. Ct. 108, 97 L. Ed. 672 (1952), a petitioner, although not indicted at the time of his motion, moved under Rule 41(e) to suppress information he had volunteered to the Treasury Department, alleging the use of such information by the Government violated the Fifth Amendment. The District Court entertained the motion but denied the petition on the merits, finding that no violation of Centracchio's constitutional rights had occurred. The First Circuit held that the denial of the motion was appealable, because the motion was ...