United States of America, v. John Doe, 451 F.2d 466 (1st Cir. 1971)

Because we wanted to be certain, if it was possible to be, that no reservations remained with respect to this last circumstance, after argument we asked the government to supply in affidavit form, if it could do so, a definite assertion that there had been no tap invading Marx's personal rights. It has since so done.²  Under these circumstances the posture of the case is that the government has fully disclaimed with respect to personal taps, but could be said not to have sufficiently done so if it is necessary to deny in absoluate terms, cf. Alderman (Kolod) v. United States, 1968, 390 U.S. 136, 88 S. Ct. 752, 19 L. Ed. 2d 962; s. c., 1969, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176, third party taps that may, conceivably, have led to her questioning.

The relevant statutory provisions, U.S.C. Title 18, sections 2515, 2518(10) (a), 2510(11), and 3504(a) (1), are set forth in the margin.³  The government contends that guides to the meaning of these provisions are to be found in the legislative history. Its first point is that the omission of the words "grand jury" in section 2518(10) (a) can be shown to be deliberate. This argument is set forth, and rebutted, in Judge Adams' opinion in Egan. We assume, for present purposes, the correctness of the rebuttal, although not without some doubts, particularly if a claim may be made as easily as Marx contends, and a response in the form described in the third paragraph of this opinion, ante, is to be regarded as insufficient. Assuming, however, that the section 2518 (10) (a) procedure is applicable in all grand jury proceedings, Marx still faces the question whether, in view of the sufficient denial that any taps were made affecting her own personal rights, she was an "aggrieved person" to press a claim that her questioning was the result of leads obtained by illegal taps on someone else. We hold the answer to that question is no.

Unless changed by the recent statute, the law on this subject is clear. An illegal seizure cannot be complained of unless some right of the complaining party has been invaded. Jones v. United States, 1960, 362 U.S. 257, 260-261, 80 S. Ct. 725, 4 L. Ed. 2d 697. Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319, principally relied on in Evans, and in a number of the opinions of the majority judges in Egan, involved an unlawful seizure of the defendant's own books. If a witness who is not yet a defendant is to be given a right not to testify based upon an invasion of the rights of some third party, it should require a strong showing of a legislative purpose to make so substantial a change. In the act's giving standing to complain to an "aggrieved person," and in defining such as "a party to any intercepted * * * communication or a person against whom the interception was directed," section 2510 (11), ante, there is nothing to suggest such a change. In a footnote to an opinion handed down shortly after the act was passed, Mr. Justice White, speaking for the Court, considered the legislative history and expressly rejected the idea that the act expanded traditional concepts of standing developed under F.R.Crim.P. 41(e). Alderman v. United States, 1969, 394 U.S. 165, 175 n. 9, 89 S. Ct. 961, 22 L. Ed. 2d 176.

Since Marx, in effect, asks us to disregard the Court's footnote as ill-considered dictum, we will briefly review her position. We find the legislative history in accord with the Court's statement.⁴  There is nothing to the contrary in Egan or Evans, in spite of Marx's constant invocation of the opinions in those cases. In In re Egan the court addressed itself exclusively to invasions of the witness' own rights, made no reference to third party taps, and employed reasoning applicable to personal rights. While the majority opinions in In re Evans contain no such express articulation, Judge Bazelon, in whose opinion Judge Wright concurred except with respect to a matter not here relevant, speaks of Egan as "directly in point," 452 F.2d p. 1242, and relies principally upon Silverthorne Lumber Co., also a personal invasion case. We take his statement that the affiants "[stated] their belief that wiretapping and electronic surveillance had been directed against them," p. 1242, as referring to the direct invasion considered in Egan, and not to third party taps against which Marx would protest here.

Marx's only answer to counter her own apparent recognition that she is not an "aggrieved person" within section 2518 (10), is an assertion that "it hardly seems possible that it is the only remedy." She adds that she is "aware of statements in the legislative history * * [which have been argued to be] inconsistent with [her] position," but says she believes the majority opinions in Egan and Evans answer it. No note is taken of the fact that the Egan and Evans "answers" have no relation to this question. No vestige of support is offered for Marx's supposition that when the act defined standing it contemplated that relief would be available as well to those who lacked it.

Since it is arguable that no sufficient disclaimer of personal taps on Marx was made until the case reached this court, we assume and resolve that issue in her favor, and vacate the order of contempt. The substantive questions, however, having been fully argued, the district court is instructed that it may hold the witness in contempt if she fails to appear and refuses to further answer on the ground of electronic surveillance on the present record. Since such refusal would, in our opinion, be frivolous, the court is instructed in such event not to admit the witness to bail until further order of this court.

Mandate to issue forthwith.