United States v. Costello

Decision Date23 October 1956
Citation145 F. Supp. 892
PartiesUNITED STATES of America, Plaintiff, v. Frank COSTELLO, Defendant.
CourtU.S. District Court — Southern District of New York

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.

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 prosecutor's questioning was suggested 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 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 thought not. In any event, it was impossible for me to make rulings of law against a concrete set of facts.16 See 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 the trial began. While he earlier 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 file20 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

"The stark issue of rudimentary morality in criminal prosecutions" — to which a denaturalization proceeding is akin, Cf. Knauer v. United States, 1946, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796"should not be lost in a melange of * * * issues * * *. And the importance of thus vindicating the scrupulous administration of justice as a continuing process far outweighs the disadvantage of possible delay in the ultimate disposition of this case." Cf. Mesarosh v. United States, 352 U.S. 808, 77 S.Ct. 14, 16 (opinion of Frankfurter, J. on Government's motion to remand). "* * * Fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted." Cf. Communist Party v. Subversive Activities Control Board, 1956, 351 U.S. 115, 124, 76 S.Ct. 663.

Accordingly, the case is dismissed without prejudice to the Government's initiating it anew on the very same grounds. An order to that effect is filed herewith.

* Now 8 U.S.C.A. § 1421 et seq.

3 See minutes of June 5, 1956.

7 Record p. 186. The Government's right to call the defendant as a witness was vigorously disputed. I have filed a written opinion, dated September 26, 1956, overruling defendant's claim of privilege under the Fifth Amendment, notwithstanding some serious misgivings. United States v. Costello, D.C.S.D.N.Y.1956, 144 F.Supp. 779.

13 One of them, a former Assistant United States Attorney, participated in the prosecution, and his identity was furnished upon my request by counsel for the Government. The other, a former detective of the New York City Police Department, was identified by a former Government investigator and proved to be the person who actually took care of the technical details of numerous wire taps used in that case. The former Assistant subsequently sent me an affidavit which I made a part of the record (Court's Ex. 5).

The Government objected that it had no opportunity to cross-examine these persons. But I was faced with a situation where, from the record, I had no choice except to believe that the evidence was probably tainted. In the absence of any discrediting evidence adduced by the Government, I tried...

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10 cases
  • Costello v. Immigration and Naturalization Service
    • United States
    • U.S. Supreme Court
    • February 17, 1964
    ...is unrealistic for two reasons. At the time of the trial, denaturalization proceedings were pending against petitioner. United States v. Costello, D.C., 145 F.Supp. 892, reversed, 247 F.2d 384 (C.A.2d Cir.), reversed, 356 U.S. 256, 78 S.Ct. 714, 2 L.Ed.2d 741. He was therefore aware of the ......
  • Suarez v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • August 10, 1972
    ...assessment); United States v. $4,171.00 in United States Currency, 200 F.Supp. 28 (N.D. Ill. 1961) (forfeiture); United States v. Costello, 145 F.Supp. 892 (S.D. N.Y. 1956), reversed on another issue 247 F.2d 384 (C.A. 2, 1957), which was in turn reversed on such other issue 356 U.S. 256 (1......
  • United States v. Costello
    • United States
    • U.S. District Court — Southern District of New York
    • February 20, 1959
    ...was sustained by the court and the action was dismissed without prejudice to renew and upon certain conditions. United States v. Costello, D.C.S.D.N.Y.1956, 145 F. Supp. 892. This judgment was subsequently reversed by the United States Court of Appeals for this circuit on the ground that ev......
  • Costello v. United States, 59
    • United States
    • U.S. Supreme Court
    • February 20, 1961
    ...on the ground that wiretapping may have infected both the Government's affidavit of good cause and its evidence. United States v. Costello, D.C., 145 F.Supp. 892. The Court of Appeals for the Second Circuit reversed on the ground that the Government should have been afforded an opportunity ......
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