United States v. Butenko

• Decision Date: 05 March 1974
• Docket Number: No. 72-1741.,72-1741.
• Citation: 494 F.2d 593
• Parties: UNITED STATES of America v. John William BUTENKO and Igor A. Ivanov. Appeal of Igor A. IVANOV.
• Court: U.S. Court of Appeals — Third Circuit

494 F.2d 593 (1974)

UNITED STATES of America v. John William BUTENKO and Igor A. Ivanov.

Appeal of Igor A. IVANOV.

No. 72-1741.

United States Court of Appeals, Third Circuit.

Argued March 20, 1973.

Reargued November 15, 1973.

Decided March 5, 1974.

As Amended April 9, 1974.

COPYRIGHT MATERIAL OMITTED

Jonathan L. Goldstein, John J. Barry, Edward J. Dauber, Asst. U. S. Attys., Newark, N. J., A. William Olson, Asst. Atty. Gen., Robert Keuch, Internal Security Div., Dept. of Justice, Washington, D. C., Herbert J. Stern, U. S. Atty., for appellee.

Edward Bennett Williams, Vincent J. Fuller, Robert L. Weinberg, Williams, Connolly & Califano, Washington, D. C., for appellant.

Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges.

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

Reargued en banc November 15, 1973.

Argued March 20, 1973

Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges.

Reargued en banc November 15, 1973

Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Among the more perplexing dilemmas faced by a democractic society is that of securing its territorial and institutional integrity, while at the same time, preserving intact the core of liberties essential to its existence as an association of truly free individuals.

The disposition of this appeal, which requires us to consider the relationship between the federal government's need to accumulate information concerning activities within the United States of foreign powers and the people's right of privacy as embodied in statute and the Fourth Amendment, represents, in effect, part of the federal judiciary's attempt to strike a proper balance between these two compelling, albeit not easily reconciled, interests.

The present appeal is the most recent episode in this provocative and protracted litigation.¹ At a trial concluded on December 2, 1964, appellant Igor A. Ivanov, a Soviet national, and John Butenko, an American by birth, were convicted of conspiring to violate the provisions of 18 U.S.C. § 794(a) and (c) and 18 U. S.C. § 951. These statutes, in essence, prohibit the transmission or communication to a foreign government of material or information relating to the national defense, and forbid a person from acting as a foreign agent absent prior notification to the Secretary of State. In a previous appeal, Ivanov and Butenko contended that the evidence offered by the government, which tended to implicate them in an attempt to purloin highly sensitive information concerning the Strategic Air Command, was insufficient to support the averments in the indictments and, hence, their convictions could not stand. This Court agreed with Ivanov's contention with respect to his conviction for violating § 951, but otherwise affirmed the judgment of the district court.²

Ivanov and Butenko then sought certiorari in the Supreme Court. While their petitions were pending, the government voluntarily revealed that it had overheard, by means of electronic surveillance, conversations of Ivanov and of Butenko. The Supreme Court thereupon granted certiorari, limited to questions of standing and the government's obligation to disclose the records of wiretaps determined to be illegal. In addition, the Court consolidated appeals of Ivanov and Butenko with another case involving similar issues.³ After oral argument, the Supreme Court held that records of illegal surveillance must be disclosed to Ivanov and Butenko, and remanded the cases to the district court for

A hearing, findings, and conclusions (1) on the question of whether with respect to any petitioner there was electronic surveillance which violated his Fourth Amendment rights, and (2) if there was such surveillance with respect to any petitioner, on the nature and relevance to his conviction of any conversation which may have been overheard through that surveillance.⁴

On remand, the district court was presented with requests for disclosure of the records of two sets of interceptions. Pursuant to the Supreme Court's directive, the district court, after conducting a hearing, found that information contained in the first set of interceptions, conceded to be illegal by the government, had not tainted the convictions of Ivanov or Butenko.⁵ After examining the records of a second set of interceptions in camera, the district court held that the electronic surveillance producing these records did not violate § 605 nor contravene the Fourth Amendment.⁶ The district court, therefore, declined to order the government to disclose to Ivanov and his counsel the records of the second set of interceptions or to conduct further proceedings with respect thereto.⁷ Accordingly, the district court directed that new judgments of conviction be entered.

Ivanov challenged the new judgment of conviction as to him. He asserted that the loss or destruction of some of the records dealing with the first set of interceptions prevented the government from sustaining its burden of demonstrating that his conviction was not tainted by these interceptions and may have deprived him of exculpatory evidence. Additionally, Ivanov contended that the district court erred in failing to require disclosure to him and his counsel of the records of the second set of interceptions, which he claimed violated § 605 of the Communications Act of 1934, or, if the Court found them to be permissible under § 605, his Fourth Amendment rights.

A panel of this Court, in an opinion filed June 21, 1973, unanimously declined to reverse the district court's finding of no taint as to the first set of interceptions. However, the panel concluded, by a 2-1 vote, that the second set of interceptions fell within the parameters of § 605 and that, therefore, the divulgence of the contents of that set of taps, for the purpose of trial, was illegal. Consquently, the panel remanded to the district court for disclosure to Ivanov and his counsel of the records of the second set of interceptions and for an evidentiary hearing to determine whether they tainted his conviction.

The government petitioned the Court in banc for a rehearing of that portion of the panel's decision ordering disclosure and an evidentiary hearing dealing with the second set of surveillances. Ivanov filed a petition for rehearing, conditioned on the government's obtaining rehearing, contending that the panel was incorrect in concluding that the government had produced all the records previously ordered disclosed relating to the first set of interceptions. The full Court granted the government's petition for rehearing, but denied that of Ivanov.

Thus, the principal question before the Court in banc is whether it is sufficient that the records of the second set of interceptions be disclosed to the district court in camera, or whether the government must also disclose to Ivanov and his counsel the records of this set of interceptions.

I. THE DISCLOSURE REQUIREMENT

In Alderman v. United States,⁸ the Supreme Court held that the government must disclose to Ivanov and the other defendants all records of illegal surveillances, without a prior in camera review by the trial judge, for the purpose of determining if the records contain material relevant to the government's case. The Supreme Court concluded that once the interceptions are ascertained to be illegal, "the task of determining taint is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government's case."⁹

The Supreme Court made clear in Taglianetti v. United States¹⁰ that the necessity of disclosure, in cases not involving illegal surveillance, depended upon the likelihood that accurate determinations of the particular factual or legal issues in dispute were otherwise unobtainable. "Nothing in Alderman, Ivanov, and Butenko . . . requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance."¹¹ (Emphasis added) Apart from ascertaining whether evidence derived from illegal surveillances tainted a conviction, it remains within the trial judge's discretion to require or not to require disclosure of records of surveillances to facilitate resolution of questions surrounding electronic surveillance.¹²

Thus, if we are to require disclosure of the records of the second set of interceptions, we must conclude either (1) that the electronic surveillances producing such records were illegal or (2) that the trial judge abused his discretion in refusing disclosure.

In dealing with the former considerations—assessing the legality of the government's activities with regard to the second group of surveillances, we must first decide whether § 605 prohibits the surveillances at issue. If we should decide that the prohibitions of § 605 do not cover these surveillances, we must then proceed to determine whether Ivanov's Fourth Amendment rights have been transgressed.¹³ Lastly, if we should hold that this set of surveillances were not illegal, we must, in accordance with the instructions of the Supreme Court, evaluate the trial judge's exercise of discretion in refusing disclosure.

We shall address these three issues seriatim.

II. SECTION 605 OF THE COMMUNICATIONS ACT OF 1934 DOES NOT PROHIBIT THE INTERCEPTION AND DIVULGENCE OF THE CONTENTS OF ELECTRONIC SURVEILLANCE IN THE FOREIGN AFFAIRS FIELD MADE PURSUANT TO EXECUTIVE ORDER.

Section 605 of the Communications Act provides in relevant part that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person."¹⁴

This section prompted considerable discussion as electronic surveillance...