United States v. Kane, 29200.

• Decision Date: 08 November 1971
• Docket Number: No. 29200.,29200.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Morton Paul KANE and Martin Sklaroff, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 77 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Morton Paul KANE and Martin Sklaroff, Defendants-Appellants.

No. 29200.

United States Court of Appeals, Fifth Circuit.

September 30, 1971.

Rehearing Denied November 1, 1971.

Rehearing and Rehearing Denied November 8, 1971.

COPYRIGHT MATERIAL OMITTED

E. David Rosen, Miami, Fla., for Beckley & Kane & Sklaroff.

Oscar B. Goodman, Las Vegas, Nev., for Kane.

Cohen & Hogan, James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for Sklaroff.

Robert W. Rust, U. S. Atty., J. Robert Sparks, Dougald D. McMillan, Marilu Marshall, Jill Wine Volner, Attys., Department of Justice, Washington, D. C., for plaintiff-appellee.

Before BELL, THORNBERRY and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 8, 1971.

CLARK, Circuit Judge:

Morton Paul Kane and Martin Sklaroff were convicted by a jury in the United States District Court for the Southern District of Florida on March 22, 1967, of violating 18 U.S.C.A. § 1952 (1970) conducting gambling-connected telephone communications between Miami, Florida and Louisville, Kentucky, and of conspiracy to violate § 1952 and 18 U.S.C.A. § 1084 (1966) transmission of bets and wagers by a wire communication facility in interstate commerce. Kane was sentenced to concurrent five-year terms; Sklaroff was sentenced to concurrent two-year terms. On appeal, this Court, without reaching the merits, vacated the judgments and sentences and remanded the cause for further proceedings in light of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Kane v. United States, 409 F.2d 847 (5th Cir. 1969).

Pursuant to our mandate, the district court conducted an Alderman hearing and at its conclusion determined that the evidence utilized to convict the defendants was not tainted by illegal electronic surveillance. After the judgments of conviction and the sentences were reimposed, Kane and Sklaroff moved for new trials. The district court refused to pass on these motions on the ground that it had no jurisdiction to hear a motion for a new trial on this remand. The pending second appeal presents for decision the issues raised by the Alderman hearing, the seven original issues, and two additional issues on the merits not raised in the original request for review.¹

THE ALDERMAN HEARING

In 1961 the Federal Bureau of Investigation (FBI) and the Internal Revenue Service began a massive five-year investigation of gambling operations in the Miami, Florida area. As a part of this in-depth inquiry, the premises of certain suspected gamblers were placed under a form of electronic surveillance, known in the vernacular as "bugging". This involved placing microphone gear in the premises which would pick up and transmit words spoken there. No attachments were made to any telephones; therefore, only the conversation of the persons on the premises were overheard or recorded. The evidence reveals that no surveillance was intended to be made of either Kane or Sklaroff directly, rather they happened to be parties to conversations monitored on the bugged premises of Frank Rosenthal and Edward McGrath. The Government admits that these buggings were illegal; the question for the court below in the Alderman hearing was whether the evidence gathered by these illegal listening devices tainted the convictions of Kane and Sklaroff.

Prior to the hearing, at the direction of the court, the Government made available to the defendants transcriptions of recorded conversations, called logs, in which the defendants were known to have been overheard. The Government also furnished logs to the defendants which disclosed instances where no words of either defendant were known to have been overheard but where one of the defendants may have been the party on the other end of the telephone. All other logs obtained by monitoring the Rosenthal and McGrath premises which were arguably relevant to this case, but not furnished to the defendants, were turned over to the trial judge for an in camera determination as to whether the Government had furnished all logs to the defendants which they had any right to review under the standards of Alderman. In addition to having such of the logs as were made available to them at the hearing to demonstrate taint, the defendants were allowed to question three FBI agents and one former agent who had gathered evidence for this proscution, to determine whether their information as to defendants' activities came from electronic surveillance records or from independent, untainted sources.

During the course of the hearing the defendants moved to require the Government to produce additional items from its files. Their requests covered an administrative review file, such of the logs examined in camera by the court as contained references to "unknown" voices, physical surveillance notes of the FBI, and its interoffice memoranda called airtels. In opposition to this discovery the Government argued that no administrative review filed had ever existed; that logs containing "unknown" voices could not possibly have yielded evidence that was used against the defendants or, alternatively, that the defendants did not have the requisite standing to demand the production of such "unknown" voice logs; and that the production of surveillance notes or airtels would be extremely burdensome to the Government, would be useless to the defendants, would constitute rummaging through Government files, and would go beyond the requirements of Alderman. The trial court denied the defendants' discovery motion in toto, based on the findings set out in the margin.²

On the present appeal Kane and Sklaroff specifically contend that the logs examined in camera should have been made available to the defendants for their inspection to determine relevancy, and the district court should have granted their motion for discovery of the additional government documents.

a. In Camera Procedures

In order to establish a right to review illegally recorded government records under Alderman, the proof must show that the conversation contained the individual's own voice or that the eavesdropping occurred on the individual's own premises. A voice whose identity is not known to the listening party does not, without more, establish standing on behalf of any person. A defendant who proposes to establish that he has standing to obtain a recording containing the voice of an unknown person has the burden of producing evidence that would indicate to the judge making the in camera review that he is the unknown party whose conversation has been monitored, or that the recording came from his premises. The defendants here failed to produce such evidence. They argue that placing such a burden upon them denies due process by freighting them with an impossible requirement—one they cannot meet without an inspection of the logs themselves. Certainly this argument has plausibility if considered solely from the defendants' point of view. It is easy to conjecture that if they had full access to all government records they might, by knowing the time, place and content of certain logs which appear innocuous, establish that their voices were those which are now unknown. However, we read Alderman's definition of standing as prescribing the outer limits of a defendant's right to view illegal wiretaps. To follow the defendants' entreaties in this case would push us beyond those outer limits.^2A If their assertions were honored, the defendants would effectively divest the court of its specifically established prerogative of determining standing.

As explicated in Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969), the problem in Alderman was that the in camera procedures described there were inadequate to safeguard Fourth Amendment rights. However, these holdings make it explicitly clear that Alderman did not rule all in camera proceedings deficient.³ Here the in camera proceedings did not entail the difficulties found compelling in Alderman. The record developed below demonstrates that the procedures employed by the trial court were correct.⁴

The route we must follow is not insensitive to the problem of safeguarding the rights of an accused from possible disingenuous assurances by the Government that it has done its duty of making available to the accused and the court all the illegal surveillance materials that are arguably relevant to the case. It recognizes that there are many means by which a Government agent committed to devious conduct may try to enshroud his illegal actions from even the most vigilant accused. For instance, the tapes could be erased and the logs burned, as soon as all relevant information had been gleaned from them. However, the balance has been struck on broader interests. The accused cannot be granted the right to rummage through the Government's files. Taglianetti, supra. We view the Alderman limits as seeking to strike a just balance between the right of a defendant to eliminate tainted evidence from his trial process with the due preservation of the right of the people to deter criminal conduct. The Court's solution is to leave to the integrity of the trial judge the duty to decide in camera only issues relating to standing and to throw open to the light of adversary procedures all issues as to relevance of evidence which his informed judgment tells him the defendant has a right to review. This is the procedure designed to accord both the defendant and the people the best protections possible.

b. Production of Records

The same problem of prosecutorial good faith discussed above arises with respect to the defendants' request for surveillance notes and airtels. The trial judge required the FBI to search its files to determine whether they contained any tainted information. The argument of the defendants that this was improper necessarily asserts that they should have been allowed to search through the...