United States v. Fannon, 18076-18077.
| Decision Date | 23 December 1970 |
| Docket Number | No. 18076-18077.,18076-18077. |
| Citation | 435 F.2d 364 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John FANNON, Defendant-Appellant. John FANNON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John J. Cleary, Chicago, Ill., for appellant.
William J. Bauer, U. S. Atty., Joseph K. Luby, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.
Before HASTINGS, Senior Circuit Judge, KILEY and KERNER, Circuit Judges.
Defendant Fannon was convicted by a jury of the substantive offenses of fraud by interstate telephone, 18 U.S.C. § 1343, interstate transportation of counterfeit securities, 18 U.S.C. § 2314, and conspiracy to commit the substantive offenses, 18 U.S.C. § 371. This court affirmed, United States v. Fannon, 403 F.2d 391 (1968). The United States Supreme Court vacated our judgment, 394 U.S. 457, 89 S.Ct. 1224, 22 L.Ed.2d 416 (1969), and remanded the cause to the district court. On remand the district court entered judgment reinstating the conviction. Fannon has appealed from that judgment. We vacate the judgment and remand for further proceeding.
In Fannon's trial for the offenses charged, the government submitted a sealed exhibit containing eavesdropping evidence obtained in surveillance of a codefendant. On appeal from his conviction the issue was raised in this court as to whether that eavesdropping evidence was relevant to Fannon's conviction. This court examined the sealed exhibit and found "no information nor evidence relevant to the defendant's conviction." 403 F.2d at 394.
Fannon's petition to the Supreme Court for certiorari made no reference to the eavesdropping evidence issue, but because of a reference to the eavesdropping evidence in the government's answer to the petition, Fannon moved in the Supreme Court to supplement the record to include, among other things, his motion and the government's answer filed in this court upon the issue. The Supreme Court granted Fannon's motion, vacated this court's judgment affirming his conviction and remanded the cause to the district court to consider further, in the light of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968), the question whether unlawful eavesdropping by the government unconstitutionally infected Fannon's conviction. In the district court the government moved to reinstate the district court's judgment and Fannon moved for additional disclosure of government eavesdropping. The district court denied Fannon's motion for additional disclosure and granted the government's motion.
The government's motion stated that there was no eavesdropping upon any conversation of Fannon's or of any person on Fannon's premises, and submitted to the district court the sealed exhibit examined on appeal by this court. Fannon's motion for additional disclosure requested "at least" an in camera inspection of the government's prosecution file, including the FBI investigation file, to determine whether there had been eavesdropping upon any of Fannon's conversations or upon any conversations on his premises. The motion was aimed at establishing Fannon's standing to show the evidence used against him at his trial arose from the government's illegal conduct.
In a memorandum decision the district court found that the government could rely upon its own determination whether any conversations of Fannon or of others on his premises were unlawfully monitored; and that Fannon had no standing to assert that his conviction was tainted under the Alderman rationale which the court thought does not apply to require an adversary hearing on the question of standing. The court found that if it was in error with respect to standing it further found "upon an in camera investigation" that no eavesdropped conversation of Fannon was in the evidence and no eavesdropping conducted on his premises. The court thereupon denied Fannon's motion for additional disclosure.
Subsequently the court supplemented its memorandum decision. It elicited unsworn negative answers from the government attorney as to whether the government had or knew of any electronic surveillance on any conversation of Fannon, or of any conducted on his premises, either by the government or "Arthur Henderlong."1 Fannon objected unsuccessfully to the inquiry on the ground that the district court's remand "hearing" amounted to no more than this court's in camera inspection of the electronic eavesdropping evidence on Fannon's appeal. The objection was overruled.
The issue before us is whether Fannon is entitled to the discovery sought by his motion as a means of establishing his standing to show that evidence introduced at his trial arose from the illegal monitoring by the government. We think that Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961 (1968), implicitly requires that Fannon's motion for discovery be granted.
Alderman expressly requires an adversary hearing for one with standing to prove that his conviction was tainted by use of evidence which arose from illegal monitoring of conversations, either of his or of others upon his premises, whether or not he was present or participated in the latter. Where illegal monitoring is conceded, a petitioner must have an opportunity to prove that a substantial part of the case against him was the fruit of the government's illegal conduct.
Alderman,supra, 394 U.S. at 183, 89 S.Ct. 961.
While Alderman does not expressly deal with the issue of standing, we think that without a fair opportunity to prove standing, the right to the opportunity to show a tainted trial — announced in Alderman — is a right without value. The government concedes here that it has conducted illegal eavesdropping upon conversations of a Fannon co-defendant. For that reason we think, to establish standing, he has the right to go forward with proof that his conversations, or those of others on his premises, whether or not he was present or participated, was overheard. This proof is needed as a basis for availing himself of the opportunity which Alderman holds he has the right to with respect to the main issue whether his trial was tainted. Neither the district court's in camera inspection nor the unsworn answers of the prosecutor to the court's questions, nor both, adequately respond to the implicit requirement in Alderman, and in the Supreme Court's remand of this case, of a fair opportunity to establish standing.2
The government conducts surveillance generally...
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