United States v. Clay, 28252.

• Decision Date: 19 August 1970
• Docket Number: No. 28252.,28252.
• Citation: 430 F.2d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cassius Marsellus CLAY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

430 F.2d 165 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Cassius Marsellus CLAY, Jr., Defendant-Appellant.

No. 28252.

United States Court of Appeals, Fifth Circuit.

July 6, 1970.

Rehearing Denied and Rehearing Denied August 19, 1970.

Charles Morgan, Jr., Reber F. Boult, Jr., Atlanta, Ga., Chauncey Eskridge, Chicago, Ill., M. W. Plummer, Houston, Tex., for defendant-appellant; Melvin L. Wulf, Eleanor Holmes Norton, New York City, of counsel.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee; Joseph J. Connolly, Michael T. Epstein, Attys., Dept. of Justice, of counsel.

Jack Greenberg, James M. Nabrit, III, Jonathan Shapiro, Elizabeth B. DuBois, New York City, amicus curiae.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied August 19, 1970.

AINSWORTH, Circuit Judge.

This Selective Service case involves the conviction by a jury on June 20, 1967 of Cassius Marsellus Clay, Jr., also known as Muhammad Ali, former professional heavyweight boxing champion of the world, for wilfully refusing to be inducted into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462, and is before us for the second time.¹ We affirmed the conviction on May 6, 1968, and rehearing en banc was denied June 6, 1968. See Clay v. United States, 5 Cir., 1968, 397 F.2d 901.

The defendant then petitioned the Supreme Court for certiorari, and while the petition was pending before that Court, the Government revealed that there had been five telephone conversations participated in by defendant which were overheard by the Federal Bureau of Investigation by electronic wiretapping. Accordingly, the Supreme Court granted certiorari, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), and remanded this case to the District Court for further proceedings in conformity with Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), to determine whether the conviction was affected by the wiretaps.

Pursuant to the Supreme Court's grant of certiorari, a lengthy hearing was then held before District Judge Joe Ingraham on June 2, 4, 5, and 6, 1969, in Houston, Texas, at which time the Court considered the FBI logs of the five wiretapped telephone conversations delivered to it in advance of the hearing by the Government. The Court then ordered that the logs of wiretapped conversations 1, 2, 3, and 4 be received in evidence and their contents fully disclosed to the defendant. As to these four logs of wiretapped telephone conversations, the Court held that the defendant had standing to assert the illegality of the surveillance and that the illegality was not challenged by the Government. The fifth log of a wiretapped conversation in which defendant participated was considered in camera by the District Judge, with related exhibits, and held to be a lawful surveillance by the FBI pursuant to the Attorney General's authorization of a wiretap for the purpose of gathering foreign intelligence.

The District Court concluded that the first four logs did not bear on the issues involved in defendant's conviction; that the defendant failed to show any relevancy of these logs to the conviction; and that the conviction must stand. The fifth wiretapped conversation which related to the gathering of foreign intelligence was held to be lawful surveillance, reasonable and necessary to the protection of the national interest.

As we have stated, logs 1, 2, 3, and 4 were made available to defendant to afford him an opportunity to show the relevance of any of these wiretapped conversations to his Selective Service law conviction. (The logs are all of the evidence which the FBI possesses of the wiretapped conversations, the tapes on which the conversations were originally recorded having been erased when the logs were typed.) The five telephone conversations were not tapped in an electronic surveillance of defendant Clay but were made in connection with surveillance of others, the defendant not having been the subject of the surveillance.

Log 1 pertained to a telephone conversation on April 22, 1965, when the telephone of Elijah Muhammad was tapped in Phoenix, Arizona. A person named Herbert called the defendant, Clay, asking him about his physical condition, prospective fights, and personal details relative to the family.²

Log 2 referred to another wiretap of a telephone conversation of the telephone of Elijah Muhammad on March 24, 1964. Elijah called defendant Clay, telling him that he wanted to see him about making a minister out of him when "he quit thinking of fighting all the time" and that Clay would make a better minister than a fighter.³

Log 3 was another log of a wiretap of the Phoenix, Arizona, telephone of Elijah Muhammad of a telephone conversation on October 22, 1964, when a man believed to be John Ali talked to a person believed to be the defendant, Clay, giving him a message from Elijah about holding up "those TV people," who were apparently about to interview Clay.⁴

Log 4 was taken on September 4, 1964, in Atlanta, in connection with surveillance of the telephone of Dr. Martin Luther King, Jr. MLK (ostensibly Dr. King) exchanged greetings with defendant Clay, wished him well on his recent marriage, and in turn was invited to attend defendant's next championship fight. Clay also told MLK to take care of himself, that he is known world wide, and admonished him that he "should watch out for them whities," etc.⁵

The Trial Judge held that "the logs are so totally innocuous that they could not have had any bearing on the defendant's conviction under any circumstances." The District Judge's reasons in this regard, ably expressed, with which we agree, are reproduced in pertinent part in the margin.⁶

There was likewise no error committed by the District Court in rejecting the broad and sweeping demands for discovery by defendant's counsel of FBI files, documents, wiretapping information and tapes and transcriptions, relating to persons and conversations not participated in by defendant. All of the logs of recorded conversations of defendant were produced for his inspection except the fifth wiretap which pertained to foreign information gathering and which we will discuss later. The defendant had no right to see records or logs of conversations to which he was not a party, nor to rummage in Government files. Alderman v. United States, 394 U.S. 165, 185, 89 S.Ct. 961, 973, 22 L.Ed. 2d 176 (1969); Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 1100, 22 L.Ed.2d 302 (1969). It is clear from uncontradicted testimony that none of the information obtained in the five wiretapped telephone conversations was used in the FBI investigation of defendant's conscientious objector claim, or in the preparation of the adverse Department of Justice recommendation made in connection with defendant's original request for conscientious objector classification.⁷ In our view the Trial Court exercised "informed discretion, good sense, and fairness," Alderman, supra, 394 U.S. at 185, 89 S.Ct. at 973, in denying defendant's discovery demands and we perceive no sound reason for interfering with his decision.⁸

The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of gathering foreign intelligence information is constitutionally permissible, Giordano v. United States, supra, 394 U.S. at 314, 89 S.Ct. at 1165, 1166, 22 L.Ed.2d 297 (1969), though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 364, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967).

Moreover, in Giordano, supra, 394 U.S. at 314, 89 S.Ct. at 1165, Mr. Justice Stewart in a concurring opinion stated the following in regard to the mandate of Alderman, supra, for further hearing and the procedure to be followed in a criminal case where wiretapping information relative to a defendant had been obtained.

"We have nowhere indicated that this determination cannot appropriately be made in ex parte, in camera proceedings. `Nothing in Alderman v. United States, Ivanov v. United States, or Butenko v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.\' Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302."

An in camera examination of the fifth log and a description of the premises which were the subject of the surveillance, together with the Attorney General's express authorization to the FBI to make the surveillance, was accordingly made by the Trial Judge. It has also been made by the three judges of this panel. From this examination we agree that the log of the fifth wiretapped telephone conversation (1) was authorized by the Attorney General in writing to the FBI; (2) that it was not made pursuant to a surveillance of defendant but rather of others, and the premises were identified; (3) that it was made in connection with obtaining foreign intelligence information; (4) that the Executive Branch of the Government has properly and reasonably requested that the log not be published or disclosed to the defendant or the public because "it would prejudice the national interest to disclose the particular facts concerning this surveillance other than to the court in camera" (see affidavit of Attorney General Mitchell); and (5) its contents do not in any manner bear upon the issues involved in defendant's draft law violation case, and in no way has this wiretap prejudiced defendant, helped build a case against him, or assisted in bringing about...