145 F.Supp. 892 (S.D.N.Y. 1956), United States v. Costello

Citation:145 F.Supp. 892
Party Name:UNITED STATES of America, Plaintiff, v. Frank COSTELLO, Defendant.
Case Date:October 23, 1956
Court:United States District Courts, 2nd Circuit, Southern District of New York

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145 F.Supp. 892 (S.D.N.Y. 1956)

UNITED STATES of America, Plaintiff,


Frank COSTELLO, Defendant.

United States District Court, S.D. New York

Oct. 23, 1956

Page 893

Paul W. Williams, U.S. Atty. for the Southern Dist. of New York, New York City, for United States, Alfred P. O'Hara, Earl J. McHugh and Edwin J. Wesely, Asst. U.S. Attys., New York City, of counsel.

Hays, St. John, Abramson & Heilbron, New York City, for defendant.

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Edward Bennett Williams, Washington, D.C., for defendant, Robert Cole, New York City, of counsel.

PALMIERI, District Judge.

The Government brought this action to cancel defendant's citizenship on the ground of illegality and fraud in its procurement in violation of the Nationality Act of 1906, June 29, 1906, c. 3592, 4, 34 Stat. 596. [*] On the first day of trial, defense counsel moved to strike the affidavit of good cause, which is a prerequisite to a denaturalization proceeding, United States v. Zucca, 1956, 351 U.S. 91. 76 S.Ct. 671; United States v. Costello, D.C.S.D.N.Y.1956, 142 F.Supp. 290, and to dismiss the complaint on the ground that three of the four sources relied on by the affiant of good cause were replete with information culled from wire taps. 1 The fourth source, described as a Central Office file of the Immigration and Naturalization Service, was kept secret from the defendant. 2 Since I was unwilling to delay this frequently postponed trial any longer, 3 and since the Assistant United States Attorney vigorously denied any use of wire taps, 4 I took the motion under advisement and adjured the Assistant United States Attorney to notify me whenever he had reason to believe that his evidence stemmed from wire taps. 5 The prosecution accepted this responsibility and the trial continued. 6

Two days later, the Government called defendant Costello to the stand. 7 Almost immediately, defense counsel objected to questions seeking to elicit evidence of violations of the National Prohibition Act, 27 U.S.C.A. 1 et seq., claiming, with the support of an affidavit, that the to him by clues gleaned from intercepted to him by clues gleaned from intercepted telephone conversations. 8 Although the Assistant United States Attorney maintained that wire taps were not employed, 9 I felt that it was no longer possible to delay a disposition of this issue. Accordingly, I suspended the trial and, together with counsel, examined three of the four sources relied on by the affiant who swore to good cause-- namely, the hearings of the Special Committee of the United States Senate to Investigate Organized Crime which took place in 1950 and 1951, the minutes of the Second September 1943 Grand Jury of New York County, and the transcript of the disciplinary bar proceedings conducted before the Hon. Charles B. Sears-- well over a thousand pages in all. 10 The fourth source, even at this late date of trial, was kept secret from me and from the defendant. 11

Although Government counsel advised me that the affiant of good cause based his information on only a few undisclosed pages in these voluminous records, 12 I found that the three sources contained indications of the extensive use of wire taps covering a period of many years and beginning in the 1920's. My belief as to this tainted quality was confirmed by telephone conversations with two men who had personal knowledge of taps on telephone lines during the 1920's in connection with an indictment returned against the defendant and many others for violations of the National Prohibition

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Act. 13 The information found in the aborted proceedings surrounding this indictment appears to be inextricably interwoven with other wire tap information appearing in the three sources with which we are concerned.

Once the defendant has shown that a substantial part of the Government's case is built on wire tap evidence, the Government must prove that its evidence has an independent and untainted origin. Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; United States v. Coplon, 2 Cir., 1950, 185 F.2d 629, 28 A.L.R.2d 1041, certiorari denied, 1952, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688; Coplon v. United States, 1951, 89 U.S.App.D.C. 103, 191 F.2d 749, certiorari denied, 1952, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690; United States v. Goldstein, 2 Cir., 1941, 120 F.2d 485, 488, affirmed, 1942, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (dictum). Government counsel sought to satisfy this burden by proposing a hearing after a short adjournment. 14 However, the record clearly indicated that it would take extensive proof to segregate untainted sources, and an adjournment and hearing promised an undue disruption of the trial and the consumption of considerable time.

Under the circumstances, I thought it would be fairer both to the Court and the defendant to have the Government start anew. 15 Furthermore, the record was confused as to the relative importance and extent of the information gleaned by the Government from wire tapping performed before and after the passage of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. 605 (1952), 47 U.S.C.A. § 605. Moreover, it was not certain whether or not some of defendant's admissions contained in the report of the Senate Committee hearings were induced by confronting him with such information long after the passage of the Act. If the 1925-1926 wire taps were, as I believed, the initial step of a continuous pattern of wire tap investigation and scrutiny of this defendant by federal and state law enforcement agencies, can they be considered as separable from the post 1934 wire taps and deemed admissible as evidence in a federal court? I though not. In any event, it was impossible for me to make rulings of law against a concrete set of facts. 16 See

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Hart & Wechsler, The Federal Courts and the Federal System 78-79 (1953). Since I was reluctant to make hypothetical rulings, I ordered the case dismissed without prejudice to the Government's suing again on the very same grounds. The dismissal was made contingent upon the defendant's stipulating that he would raise no objection, upon a new trial, to the Government's re-alleging the same grounds for denaturalization. This he has done. 17 Furthermore, if the case is renewed, the Government and its affiant are to be specific as to the exact sources of their information and their freedom from taint.

I do not believe that the Government is justified in asserting that the defendant waived his objections with respect to wire tap evidence. It appears that defendant's counsel did not evaluate the possibility of taint until shortly before studied the hearings of the Senate had studied the hearings of the Senate Committee to Investigate Organized Crime, and these contained many hints of wire tapping, 18 he did not examine the Grand Jury minutes or the disciplinary bar proceedings until a week before trial. 19 More important, he was never shown the Central Office file 20 and never really knew the exact sources of information upon which the affiant of good cause relied. 21 In addition, the Assistant United States Attorney's adamant insistence to the very last moment of the trial that his evidence did not stem from wire taps is hardly consistent with his claim that the defendant should be held to have waived any objection to them. 22

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'The stark issue of rudimentary morality in criminal prosecutions'--to which a denaturalization proceeding is akin, Cf. Knauer v. United States, 1944, 322...

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