Opinion · Supreme Court of the United States

Giordano v. United States

394 U.S. 310

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1969-03-24
Topic
bankruptcy

How later courts describe this case

  • hearing to determine if the government was genuinely unable through reasonable efforts to produce an informer
  • message sent by court to jury, through deputy marshal, to continue deliberations was harmless error
  • conspiracy to commit robbery affecting interstate commerce and conspiracy to transport stolen goods in interstate commerce
  • defense to violation of Selective Service laws did not require broad investigation into activities and procedures of draft system
  • quoted with approval in United States v. Cochran, 499 F.2d 380, 388 (5th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975)
  • participation in the crime was a result of entrapment by the informant
  • “two witness” rule inapplicable where government’s evidence of falsity rested on documentary evidence
  • concurring opinion of Stewart, J.

Citator

UpLaw has not yet analyzed Giordano v. United States. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
284 opinions

Headnotes

  1. Criminal Law & Procedure — Wiretapping Where the record does not establish whether governmental electronic surveillance was unlawful, the District Court must develop the relevant facts and decide in the first instance whether the surveillance violated the Fourth Amendment; a finding that the surveillance was lawful makes disclosure and further proceedings unnecessary. 394 U.S. at 312
  2. Criminal Law & Procedure — Standing Whether a petitioner has standing to assert the illegality of electronic surveillance or of the introduction of its fruits is an issue to be resolved by the District Court in the first instance. 394 U.S. at 312
  3. Criminal Law & Procedure — Wiretapping The requirement that products of governmental electronic surveillance be turned over to defense counsel is expressly limited to situations where the surveillance violated the Fourth Amendment; the court does not decide that any particular surveillance did violate the Amendment, leaving that threshold question to the District Courts. 394 U.S. at 313 (Stewart, J., concurring)
  4. Criminal Law & Procedure — Wiretapping The determination whether electronic surveillance violated the Fourth Amendment may appropriately be made in ex parte, in camera proceedings; neither an adversary proceeding nor full disclosure is required for resolution of every issue raised by electronic surveillance. 394 U.S. at 313-314 (Stewart, J., concurring)
  5. Constitutional Law — National Security Surveillance The standards governing the constitutionality of electronic surveillance directed at gathering foreign intelligence information—necessary for the conduct of international affairs and the protection of national defense secrets from foreign espionage and sabotage—remain an open question; the Court has not addressed whether such surveillance violates the Fourth Amendment. 394 U.S. at 314 (Stewart, J., concurring)
GIORDANOv. UNITED STATES,394 U.S. 310(1969)
GIORDANOv. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 28.
Decided March 24, 1969.fn*
The cases are remanded to the District Courts for further proceedings in conformity withAldermanv.United States, ante, p. 165.

No. 84, certiorari granted as to petitioner Franzese only and denied as to the others;392 F.2d 954, vacated in part and remanded. No. 317, certiorari granted as to petitioners Mirro and McDonnell and denied as to the others;396 F.2d 283, vacated in part and remanded. In the following cases certiorari granted and the judgments below vacated and remanded: No. 28,385 F.2d 988; No. 54,390 F.2d 244; Nos. 106 and 168,394 F.2d 304and 327; No. 124,393 F.2d 597; No. 129,395 F.2d 47; No. 271,397 F.2d 901; Nos. 474 and 715,401 F.2d 664; No. 546,398 F.2d 291; No. 668,401 F.2d 259; and Nos. 895 and 911,402 F.2d 380.
Carlton Roeserfor petitioner in No. 28.Irving Anolikfor petitioner in No. 54.Maurice Edelbaumfor petitioner Franzese,William L. Lynchfor petitioner Crabbe,Raymond A. Brownfor petitioner Matera, andPeter L. F.Sabbatinofor petitioner Potere in No. 84.Raymond J.Page 311SmithandMorris A. Haftfor petitioner in No. 106.Maurice J. WalshandJohn Powers Crowleyfor petitioner in No. 124.Charles A. Bellowsfor petitioner in No. 129.Edward Bennett Williams, Harold Ungar, Steven M.Umin, andMr. Walshfor petitioner in No. 168.CharlesMorgan, Jr., Howard Moore, Jr., George Pontikes, MarvinKarpatkin, Melvin L. Wulf, andEleanor H. Nortonfor petitioner in No. 271.Edward J. Calihan, Jr., Mr.Crowley, andRobert S. Baileyfor petitioners in No. 317.Anthony J. DeMariefor petitioner in No. 474.MorrisA. Shenker, Joseph A. Fanelli, Jacques M. Schiffer,Cecil D. Branstetter, andDaniel B. Maherfor petitioners in No. 546.Clyde W. WoodyandMarian S. Rosenfor petitioner in No. 668.Herald Price FahringerandFrank G. Raichlefor petitioner in No. 715.Messrs.WalshandShenkerfor petitioner Hoffa,George Callaghanfor petitioner Strate,Richard E. Gormanfor petitioner Burris,Mr. Schifferfor petitioner Weinblatt, andHarvey M. Siletsfor petitioner Kovens in No. 895.Frank Raganofor petitioner in No. 911.Solicitor General Griswoldfor the United States in No. 28.Solicitor General Griswold, Assistant Attorney GeneralVinson, Beatrice Rosenberg, andSidney M. Glazerfor the United States in No. 54.Solicitor GeneralGriswold, Assistant Attorney General Vinson, Miss Rosenberg, andRoger A. Pauleyfor the United States in Nos. 84, 271, and 317.Solicitor General Griswold, AssistantAttorney General Vinson, andMiss Rosenbergfor the United States in Nos. 106, 129, and 168.SolicitorGeneral Griswold, Assistant Attorney General Vinson,Miss Rosenberg, andLeonard H. Dicksteinfor the United States in No. 124.Solicitor General Griswold, AssistantAttorney General Vinson, Jerome M. Feit, andMr.Glazerfor the United States in No. 474.SolicitorGeneral Griswold, Assistant Attorney General Vinson,Page 312Theodore George Gilinsky, andMr. Pauleyfor the United States in No. 546.Solicitor General Griswold, AssistantAttorney General Vinson, Miss Rosenberg, andPaul C.Summittfor the United States in No. 668.SolicitorGeneral Griswold, Assistant Attorney General Wilson,Mr. Feit, andKirby W. Pattersonfor the United States in No. 715.Solicitor General Griswold, AssistantAttorney General Wilson, Miss Rosenberg, andMr. Feitfor the United States in Nos. 895 and 911.
PER CURIAM.
The petitions for writs of certiorari are granted, except that in No. 84 the writ is granted as to petitioner Franzese only and denied as to the other petitioners, and in No. 317 the petition is granted as to petitioners Mirro and McDonnell only and denied as to the other petitioners.fn†The judgments of the Courts of Appeals in these cases are vacated, and the cases remanded to the respective District Courts for further proceedings in conformity withAldermanv.United States, Ivanovv.United States, andButenkov.United States, ante, p. 165. It is not evident from the records in some of these cases whether the surveillances at issue were unlawful. It may be that the overhearings in some instances were not achieved by trespass, seeKatzv.United States,389 U.S. 347(1967);Desistv.United States, ante, p. 244, andKaiserv.New York, ante, p. 280, or for some other reasons were not unlawful. As we held inAlderman, Ivanov, andButenko, ante, at 170, n. 3, "the District Court must develop the relevant facts and decide if the Government's electronic surveillancePage 313was unlawful." Of course, a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary. Similarly, it is not clear that each petitioner has standing to assert the illegality of the surveillance or of the introduction of its fruits. As inAlderman, Ivanov, andButenko, these issues are to be resolved by the District Courts in the first instance.

MR. JUSTICE BLACK dissents, except in Nos. 895 and 911, in the consideration and disposition of which he took no part.

MR. JUSTICE WHITE took no part in the consideration or disposition of Nos. 546, 895, and 911.

MR. JUSTICE MARSHALL took no part in the consideration or disposition of Nos. 28, 106, 129, 168, 271, 546, 895, and 911.
MR. JUSTICE STEWART, concurring.
A few words in amplification of thisper curiamopinion may help to avoid misunderstanding on the part of the litigants, and of the District Courts to which these cases are remanded.

As we made explicit inAlderman, Butenko, andIvanov, the requirement that certain products of governmental electronic surveillance be turned over to defense counsel was expressly limited to situations where the surveillance had violated the Fourth Amendment. We did not decide in those cases, and we do not decide in these, that any of the surveillancesdidviolate the Fourth Amendment.1Page 314Instead, we have left that threshold question for the District Courts to decide in all these cases.

Moreover, we did not inAlderman, Butenko, orIvanov, and we do not today, specify the procedure that the District Courts are to follow in making this preliminary determination. We have nowhere indicated that this determination cannot appropriately be made inex parte,in cameraproceedings. "Nothing inAldermanv.UnitedStates, Ivanovv.United States, orButenkov.UnitedStates, ante, p. 165, requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance."Taglianettiv.UnitedStates, post, p. 316.

Finally, the Court has not in any of these cases addressed itself to the standards governing the constitutionality of electronic surveillance relating to the gathering of foreign intelligence information — necessary for the conduct of international affairs, and for the protection of national defense secrets and installations from foreign espionage and sabotage. MR. JUSTICE WHITEPage 315has elsewhere made clear his view that such surveillance does not violate the Fourth Amendment, "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."2While two members of the Court have indicated disagreement with that view,3the issue remains open.4

One might suppose that all of this should be entirely clear to any careful reader of the Court's opinion inAlderman, Butenko, andIvanov. Perhaps so, and perhaps, therefore, what I have said is quite unnecessary. But 10 years of experience here have taught me that the most carefully written opinions are not always carefully read — even by those most directly concerned.Page 316
  1. Page 310 Together with No. 54,Scandifiav.United States;No. 84,Franzese et al. v.United States;No. 106,Evansv.United States;No. 124,Aiuppav.United States;No. 129,Amabilev.United States;No. 168,Battagliav.United States;No. 271,Clay, aka Aliv.UnitedStates;No. 317,Di Pietto et al. v.United States;No. 474,Natarelliv.United States;No. 546,Hoffa et al. v.United States;No. 668,Stassiv.United States;No. 715,Randacciov.United States;No. 895,Hoffa et al. v.United States;and No. 911,Dranowv.UnitedStates,also on petitions for writs of certiorari. Nos. 54, 84, 474, and 715 are to the United States Court of Appeals for the Second Circuit; Nos. 271 and 668 are to the Court of Appeals for the Fifth Circuit; No. 546 is to the Court of Appeals for the Sixth Circuit; Nos. 106, 129, 168, 317, 895, and 911 are to the Court of Appeals for the Seventh Circuit; and No. 124 is to the Court of Appeals for the Tenth Circuit. ↩
  2. Page 313 We read the papers filed by the United States in these two cases as stating that the surveillances neither invaded the premises of the other petitioners nor overheard their conversations. ↩
  3. Page 313 In oral argument of theButenkoandIvanovcases, the Solicitor General, mystifyingly, sought to concede that the surveillances therewerein fact unconstitutional, although he was repeatedly invited Page 314 to argue that they were not. The following colloquies during oral argument of theIvanovcase are illustrative:

    "Q. Are you asking us to decide here or to leave open on remand the question as to whether this violates, this bugging in this particular case, violates the Fourth Amendment?

    "A. Our position would be the same had it or not. We are not arguing that it did not violate the Fourth Amendment.

    . . . . .

    "Q. In other words, the premise in which you are proceeding here is that you admit for the purposes of this case that this was illegal bugging?

    "A. Yes, Mr. Justice.

    . . . . .

    "Q. And you are going to remain free to argue to the district judge that there was no violation?

    "A. No, sir."

    In deciding those cases, the Court declined to accept the Solicitor General's proffered concession. ↩
  4. Page 315Katzv.United States,389 U.S. 347,364(WHITE, J., concurring). ↩
  5. Page 315Id., at 359 (DOUGLAS, J., concurring). ↩
  6. Page 315 Seeid., at 358, n. 23. ↩