United States v. Lemonakis

• Decision Date: 29 June 1973
• Docket Number: 71-1774.,No. 71-1745,71-1745
• Parties: UNITED STATES of America v. Michael LEMONAKIS, Appellant. UNITED STATES of America v. Paul ENTEN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

485 F.2d 941 (1973)

UNITED STATES of America v. Michael LEMONAKIS, Appellant.

UNITED STATES of America v. Paul ENTEN, Appellant.

Nos. 71-1745, 71-1774.

United States Court of Appeals, District of Columbia Circuit.

Argued June 16, 1972.

Decided June 29, 1973.

As Amended on Denial of Rehearing October 15, 1973.

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Leslie Scherr, Washington, D. C., for appellant in No. 71-1745.

Julian H. Singman, Washington, D. C., with whom B. Michael Rauh, Washington, D. C., was on the brief, for appellant in No. 71-1774.

William E. Reukauf, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Harold J. Sullivan and John O'B. Clarke, Jr., Asst. U. S. Attys., were on the brief, for appellee. Raymond Banoun, Asst. U. S. Atty., also entered an appearance for appellee.

Before McGOWAN and LEVENTHAL, Circuit Judges, and WILLIAM J. JAMESON,^* Senior U. S. District Judge for the District of Montana.

McGOWAN, Circuit Judge:

Appellants bring these consolidated appeals from their jury convictions, arising out of a six-week joint trial in the District Court, of all offenses with which they remained charged in what was originally a twenty-two count indictment.¹ Their contentions in this court, taken together, concern generally: (1) rights assertedly violated by the admission into evidence of certain tape recordings, and the exclusion of other evidence presented to impeach those recordings, in the context of a joinder of defendants argued to have been improper; (2) the legality of a warrantless national security electronic surveillance to gather foreign intelligence information, and the trial court's procedures in determining it to be lawful; and (3) the sufficiency of the evidence upon which appellants were convicted. For the reasons hereinafter set forth, we affirm all convictions except those affected by the remand we require in Part IV of this opinion.

I

During a substantial part of 1969, and especially in August of that year, the Georgetown area of Washington, D.C., experienced a series of burglaries, resulting in the theft of personal property valued in excess of $250,000.00. Aside from the lucrative contents of the approximately thirty target residences, the only other feature they shared in common was that in each instance they were vacant when burglarized, the inhabitants in most cases being on vacation.

At the time of the burglaries the practice of the Seventh Precinct (now Second District, Substation One) of the Metropolitan Police Department, which was and is primarily responsible for the Georgetown area, was to maintain a "vacant house book" for area householders. Entries were made therein as residents informed the Precinct of their plans to be away. That information was transcribed on two cards, one for the Precinct file and one for the police officer designated to patrol the vicinity of the residences. Only members of the Department had access to the information. It was in part this latter limitation that led those investigating the burglaries eventually to question one James Scouloukas, a police officer who had been assigned to the Seventh Precinct for nearly nine years.² Although no evidence was uncovered linking Scouloukas to any illegal activity, he nevertheless resigned from the Department in December, 1969.

The police investigation for the next six months disclosed information relating solely to one of the burglaries, provided by a Georgetown antique dealer who volunteered to the police that appellant Enten had in January, 1970, shown the dealer a clock Enten had for sale which the dealer recognized as an item that had been stolen from one of his clients, Mrs. Marion Charles. On June 9, 1970, armed with this information,³ the detective newly put in charge of the investigation of the Charles burglary on June 3, 1970, presented the matter to a grand jury. Pursuant to the grand jury's request, the detective interviewed Enten on June 11, 1970, with regard to the property in question. Enten, a successful architectural interior designer in Washington, did not make a statement, indicating his preference to consult with his attorney. That same day Enten consulted an attorney who had handled civil matters for him; later that June he first approached the attorney who was to represent him at trial. On June 19, 1970 the investigating detail met briefly with Scouloukas for the first time since the officer had resigned. It was at this point that the investigation of the Charles burglary broadened into one leading to the indictment of appellants.

On June 24, 1970 Scouloukas presented himself at the U. S. Attorney's office seeking immunity from prosecution. He was given assurances that nothing he revealed to the authorities would be used against him, whereupon he agreed to provide whatever information he had about the burglaries. On June 26, 1970 Scouloukas again met with the investigators, at which time he drove them to approximately thirty locations in the Georgetown area which he identified as having been burglarized by members of conspiracies of which he was a part; eighteen of the locations identified were named in the indictment against appellants.⁴

As of early July, 1970, the only item stolen in the burglaries which the police had recovered was a water pitcher belonging to Mrs. Charles, provided by Scouloukas himself; he also was the only person at that time to have provided information concerning the composition and operation of the conspiracy. In order to corroborate Scouloukas' statements implicating appellants, consensual electronic surveillance was undertaken of conversations Scouloukas separately initiated with each of the appellants. There were a total of ten such conversations so monitored, five involving Enten and five involving Lemonakis.

In a colloquy with the court at trial, Enten's attorney stated that a representative of his office initiated negotiations with the U. S. Attorney's office on the tenth or twelfth of July, 1970, to determine whether Enten could be granted immunity for divulging information about a portion of the stolen articles. The Scouloukas-Enten conversations were monitored on two succeeding days, July 15, 1970 (a telephone conversation successfully recorded, and a face-to-face meeting imperfectly recorded due to mechanical failure of the police receiver-recorder), and July 26, 1970 (two telephone conversations and one face-to-face meeting, all successfully recorded).

In early August, 1970, before the monitoring and successful recordation of the conversations between Scouloukas and Lemonakis took place, Lemonakis was served with a subpoena to testify before the grand jury concerning a possible conspiracy offense. This prompted Lemonakis to consult with counsel who, after the police had clandestinely taped two Scouloukas-Lemonakis telephone conversations on August 14, 1970, and one on August 15, 1970, met with the U. S. Attorney's office on August 18, 1970. The attorney was then informed that his client was a suspect in possible offenses connected with the Georgetown burglaries, whereupon he advised the Government attorneys that his client intended to invoke his Fifth Amendment privilege against self-incrimination, and would refuse to testify before the grand jury or make any statement to the Government. During that day another Scouloukas-Lemonakis conversation was taped; a final one was recorded on August 20, 1970.

Scouloukas himself testified before the grand jury on August 26, 1970. Following these and other investigative activities, the first indictments concerning the burglaries were returned on October 30, 1970.⁵ The investigation continued thereafter, leading to the superseding indictment filed January 26, 1971,⁶ upon which the appellants' trial was predicated. The final significant event to occur before that trial was the death by suicide of Scouloukas on June 10, 1971, just one week before the beginning of the trial in which he was to be a key Government witness.

II

The untimely death of Scouloukas cast its shadow over the conduct of the trial and underlies a number of the claims of error, requiring as it did the Government to prosecute its case, and appellants to defend, without direct access to a central force in the conspiracy and the principal accusatory figure of the preindictment investigation. Nowhere was the effect of his absence more evident than in the Government's ability to resort to the aforementioned recordings of Scouloukas' monitored conversations with them, ruled admissible over appellants' objections, without a corresponding opportunity by appellants to challenge the contents of those recordings by cross-examination.

A.

Both appellants raise objection to the admission of the Scouloukas-Lemonakis recordings on the ground that it denied their Sixth Amendment right to confrontation of the witnesses against them. Lemonakis complains of his inability to cross-examine⁷ Scouloukas, whose statements are alleged to have been the cornerstone of the Government's case against Lemonakis. Enten complains of his inability to cross-examine both Scouloukas and Lemonakis, who invoked his Fifth Amendment privilege against self-incrimination in refusing to testify.

Lemonakis asserts that the recordings of his conversations were admitted into evidence because they contain admissions by him against his interest, an unchallenged exception to the hearsay rule. He concedes that, in order to make those contents intelligible, Scouloukas' side of the conversation also had to be admitted; he urges, however, that the meaningful evidentiary feature of the recordings is not found in his "oblique and colorable" admissions, but rather in the informer's statements. Characterizing the latter as inadmissible hearsay, he claims their introduction was prejudicial error under the Confrontation Clause. The Government, on the other hand, argues that the recordings were offered to show Lemonakis' state of mind,...