The opinion of the court was delivered by: SIRICA
The motion at bar is made on behalf of five persons as individuals and as class representatives. They claim to represent the class of all persons whose telephone conversations, on telephones in the Democratic National Committee headquarters, were illegally intercepted by one Alfred C. Baldwin and others. They allege that conversations were intercepted, that the interception was unlawful, and that they have standing as "aggrieved persons" to block disclosure of any intercepted communications. What they seek, in simple words, is the suppression and/or destruction of anything relating to the intercepted communications: records or logs, tapes, memoranda, reports, statements by persons who overheard the conversations, etc. Specifically the relief sought is as follows:
2. issuance of an order to all parties in the "Watergate" case, the Department of Justice, the FBI, and certain other named persons prohibiting them from disclosing the contents of intercepted communications and also prohibiting them from requiring the Movants or anyone else to disclose such information.
3. the quashing of subpoenas which require Movants or members of their class to appear and testify in the "Watergate" trial. In the alternative, it is requested that an order be entered protecting Movants from questioning with regard to the contents of intercepted communications.
4. issuance of an order directing certain named organizations and persons to appear and state under oath whether or not they have in their possession or control any contents or "indicia of contents" (memoranda, notes, transcriptions, etc.) of intercepted communications. They are to name anyone else who, according to their knowledge, has such information. Any contents or "indicia of contents" are to be delivered to the Court for destruction.
For the purposes of this ruling, the Court has assumed that the Movants have standing to make their claims. They purport to have standing as "aggrieved persons," citing the provisions of 18 U.S.C. §§ 2510(11) and 2518(10) (a). The Court is not wholly convinced that the sections noted sustain the Movants' claim,
but nevertheless passes to the merits.
The Court understands Movants' argument to assert (1) that there is no need for disclosure, in this trial, of the contents of conversations allegedly intercepted, and (2) that in any case, the disclosure of such contents for whatever purpose is statutorily and constitutionally prohibited. The word "contents" is here used as it is defined in 18 U.S.C. § 2510(8).
Movants' second contention asserting what might be termed a right to prevent disclosure, relies principally on §§ 2511(1)(c) and (d) and § 2515 of Title 18 U.S.C.
Of the cases cited to support Movants' interpretation of these sections only one appears to the Court to be at all helpful. That is the recent Supreme Court decision in Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). That case actually comprised two cases from different Circuits. One from the Ninth Circuit involved two persons, Gelbard and Parnas, whose telephone conversations with alleged bookmakers were intercepted by the government. Gelbard and Parnas were later called to testify before a grand jury investigating the bookmakers. They refused to answer questions based on their intercepted conversations. When threatened with contempt, they interposed as a defense the provisions of 18 U.S.C. § 2515.
In the other case, two persons, Egan and Walsh, were called before a grand jury and offered immunity in exchange for their testimony relative to the alleged plot to kidnap Henry Kissinger. They refused to answer questions based on information which the government had obtained from its wiretapping and electronic surveillance of Egan and Walsh. They also cited § 2515.
In rendering its decision, the Supreme Court assumed that the testimony sought by the grand jury would be within the meaning of "evidence derived" from the intercepted communications as that term is used in § 2515. The Court also assumed that the government interceptions were illegal. At p. 47, 92 S. Ct. at p. 2360 the Court states "In short, we proceed on the premise that § 2515 prohibits the presentation to grand juries of the compelled testimony of these witnesses." The Court spent the ...