U.S. v. Houltin

• Citation: 566 F.2d 1027
• Decision Date: 30 January 1978
• Docket Number: No. 76-4107,76-4107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Willard HOULTIN and Kenneth B. Phillips, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1027

566 F.2d 1027

UNITED STATES of America, Plaintiff-Appellee, v. Martin Willard HOULTIN and Kenneth B. Phillips, Defendants-Appellants.

No. 76-4107.

United States Court of Appeals,

Fifth Circuit.

Jan. 30, 1978.

Joseph S. Chagra, El Paso, Tex., for Houltin.

William M. Ravkind, Dallas, Tex., for Phillips.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Jeremiah Handy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

This direct criminal appeal presents two issues. First, does the taint from illegal wiretaps extend to the evidence provided by the testimony of codefendants who, without standing to object to the wiretaps, were convicted as a result thereof and then testified under a grant of use immunity against defendants who did have standing? Second, does the Double Jeopardy Clause of the fifth amendment bar the retrial of defendants whose convictions were reversed because the evidence used to convict them resulted from illegal wiretaps?

On October 17, 1974, a jury convicted defendants Martin W. Houltin and Kenneth B. Phillips and codefendants Robert Burke, Duane Morrison, Michael Francis, and Kenneth J. Croucher on two counts of conspiring to import and possess 2,260 pounds of marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 21 U.S.C. § 841(a)(1). The trial judge sentenced each to consecutive five-year terms of imprisonment on each count and imposed varying fines. Defendants and codefendants appealed to this Court, which reversed the convictions of defendants Houltin and Phillips because the police, both federal and state, violated the fourth amendment by using illegal wiretaps during the investigation phase of the case. ¹ We sustained the convictions of the four codefendants, however, because they lacked standing under the fourth amendment to challenge the illegal wiretaps. See United States v. Houltin, 5 Cir., 1976, 525 F.2d 943, vacated in part sub nom., Croucher v. United States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 745, modified, 5 Cir., 1977, 553 F.2d 991. ²

On remand, Houltin and Phillips waived a jury trial. The Government obtained an order from the district court granting use immunity to convicted codefendants Burke, Morrison, Francis, and Croucher. These codefendants did not actually take the witness stand, however, although they were present in the courtroom. Instead, by stipulation in the record and as a matter of convenience, it was agreed that if they formally testified, their testimony would be the same as that of the D.E.A. agents who had testified at the first trial, but who could not now testify because their knowledge resulted from the illegal wiretaps. Counsel for the Government and defendants also by agreement offered some additional testimony. The district court found Houltin and Phillips guilty and sentenced each to a ten-year term of imprisonment, a special parole term of five years, and a fine. This appeal followed.

I. Fruit of the Poisonous Tree

Houltin and Phillips argue that the trial court erred in allowing the Government to use the testimony of the four codefendants who testified under a grant of use immunity. The evidence provided by such testimony according to defendants, is "fruit of the poisonous tree," see Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), because the Government first learned of the substance of codefendants' testimony as well as obtained their arrests and convictions from evidence discovered through the same illegal wiretaps that could not lawfully be used against Houltin and Phillips in the first trial. Defendants contend, in effect, that by forcing the codefendants to testify through a grant of use immunity the Government is able to circumvent the exclusionary rule and use indirectly against defendants evidence that could not be used against them directly. The Government, on the other hand, argues that the illegal wiretaps did not taint the evidence provided by the codefendants under the order compelling them to testify.

The fourth amendment exclusionary rule was born as a matter of federal law in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and extended to state criminal trials in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). ³ Its purpose is not to redress the injury to the search and seizure victim's privacy; reparation comes too late for that. See Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965). Rather, "the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, supra, 414 U.S. at 347, 94 S.Ct. at 619-20. See Pitler, "The Fruit of the Poisonous Tree" Revisited and Shepardized, 56 Calif.L.Rev. 579, 646 (1968). As Justice Stewart pointed out in Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960):

The rule is calculated to prevent, not to repair. Its purpose is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it.

Accord, Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

Under the exclusionary rule, evidence obtained in violation of the fourth amendment cannot be used in a criminal trial against the victim of the illegal search and seizure. The Constitution does not require this remedy; it is a doctrine of judicial design. Excluded evidence oftentimes is quite reliable and the "most probative information bearing on the guilt or innocence of the defendant." Stone v. Powell, supra, 428 U.S. at 490, 96 S.Ct. at 3050. Nonetheless, the rule's prohibition applies to such direct evidence as well as to "fruit of the poisonous tree" secondary evidence derived from the illegally seized evidence itself. Wong Sun v. United States, supra ; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See 18 U.S.C. § 2518(10)(a) (authorizing the suppression of any unlawfully intercepted wire or oral communication and the evidence derived therefrom). However, as Justice Brennan observed in Wong Sun,

(w)e need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."

371 U.S. at 487-88, 83 S.Ct. at 417, quoting Maguire, Evidence of Guilt 221 (1959). Thus, once a defendant demonstrates that the Government discovered evidence through an illegal search and seizure, the court must exclude it unless the Government satisfies one of two exceptions:

First, the connection between the lawless conduct of the police and the discovery of the challenged evidence may "become so attenuated as to dissipate the taint." Nardone v. United States, 1934, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. See Williams v. United States, 5th Cir. 1967, 382 F.2d 48. . . .

The second means for "purging the taint" is discovering the same evidence from an "independent source." Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. See, e. g., Agius v. United States, 5th Cir. 1969, 413 F.2d 915.

United States v. Castellana, 5 Cir., 1974, 488 F.2d 65, 67, rev'd on other grounds, 5 Cir., 1974, 500 F.2d 325 (en banc ). See Wong Sun v. United States, supra, 371 U.S. at 487, 83 S.Ct. at 417; Note, Fruit of the Poisonous Tree A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1137-38 (1967).

The evidence which defendants contest in this case as fruit of the poisonous tree falls squarely within both of these exceptions. We reach this conclusion in part on the basis of the sound advice in Williams v. United States, 5 Cir., 1967, 382 F.2d 48, 51:

(T)he significance of the nexus between an illegal search and challenged evidence is one of common sense, . . . to be considered under the facts and circumstances of the particular case.

See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939); United States v. Evans, 8 Cir., 454 F.2d 813, 818, cert. denied, 406 U.S. 969, 92 S.Ct. 2423, 32 L.Ed.2d 668 (1972). The facts and circumstances of this case indicate first that the evidence used to convict Houltin and Phillips came from a source independent of the illegal wiretaps. It is undisputed that the D.E.A. agents knew the identity of the four codefendants for several years before the illegal wiretaps. ⁴ The Government did not, however, at that time know all the details of defendants' and codefendants' smuggling operation. In the first trial, both probable cause to arrest and evidence to convict all of the conspirators came from the illegal wiretaps. This is not true with respect to the second trial of defendants Houltin and Phillips. In that proceeding the wiretaps played no part. There the overwhelming evidence of defendants' guilt was derived solely from their codefendants' stipulated testimony. This testimony came not from the wiretaps but from codefendants' own intimate knowledge of the marijuana smuggling operation in which they participated with defendants. That the Government knew first of the events and activities testified to as a result of the wiretaps is not decisive. The testimony constitutes an independent source. See United States v. Marder, 5 Cir., 1971, 474 F.2d 1192, 1196; United States v. Holsey, 10 Cir., 1970, 437 F.2d 250, 253.

We also find that the evidence derived from the four codefendants'...