United States v. Friedland

• Decision Date: 21 April 1971
• Docket Number: Docket 35527.,No. 688,688
• Parties: UNITED STATES of America, Appellee, v. Edward S. FRIEDLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

441 F.2d 855 (1971)

UNITED STATES of America, Appellee, v. Edward S. FRIEDLAND, Defendant-Appellant.

No. 688, Docket 35527.

United States Court of Appeals, Second Circuit.

Argued March 29, 1971.

Decided April 21, 1971.

Edward M. Shaw, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, and Jack Kaplan, Asst. U. S. Atty., of counsel), for appellee.

Richard Owen, New York City (Owen & Turchin, Morton J. Turchin, New York City, of counsel), for defendant-appellant.

Before LUMBARD, Chief Judge, and FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

After affirmance of Friedland's conviction in March 1968, 391 F.2d 378, on a conspiracy count and four substantive counts relating to the interstate and foreign transportation of counterfeit bonds in violation of 18 U.S.C. §§ 371, 2314 and 2315, we granted a motion to remand for a hearing pursuant to Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968), to determine whether the conviction was tainted by alleged violations of Friedland's Fourth Amendment rights. Due to circumstances that are highly regrettable but unnecessary to detail, the hearing was not held until the spring of 1970. Finding Friedland's contentions to be without merit, 316 F.Supp. 459 (1970), Judge Tyler, having set aside the judgment of conviction, entered a new one from which Friedland appeals. Two different types of alleged violations are presented.

I.

The FBI unlawfully installed electronic "bugs" in the Manhattan offices of one Arthur Tortorello from January 8, 1962 through May 14, 1963, and of a lawyer named Wilfred Davis from August 21 through September 4, 1963.¹ The logs indicate that Friedland, also a lawyer, participated in some conversations at these offices and was on the other end of the line in a number of others. The logs reveal nothing in any way pertinent to the counterfeit bond scheme of April-May 1965, of which Friedland has here been convicted, although, as Judge Tyler said, 316 F.Supp. at 461, the bugs "picked up conversations of Friedland in relation to such ignoble subjects as judge fixing, shylocking, fencing of stolen watches, trips by Friedland to Miami and Cleveland and at least an elliptical reference to a counterfeiting scheme, about which, according to Friedland's remarks to Tortorello, some unidentified person was `opening up on the stand.'"

In late 1963 or early 1964 Special Agent Best of the FBI was assigned to a squad investigating transactions in forged, counterfeit and stolen securities. He testified that he had never heard of any bugging involving Friedland until after the latter's conviction; that checking of the relevant FBI files showed that his squad had never received any memoranda containing information from the "bugs"; and that he never acquired information from any source concerning the activities of Friedland that were the subject of the bugged conversations — or at least any that he used.² His squad's interest in Friedland was triggered by cases where it was investigating another individual and "Mr. Friedland's name would come up either as being around a source of spurious securities or one that individuals had gone in or had gone into his office or something." In early 1965 Irving Richards, whose activities were then under investigation by Best's squad, was serving a sentence on a state perjury charge relating to testimony he had given, at Friedland's request, at the latter's disbarment proceeding. On the day Richards commenced serving his sentence, Best, accompanied by another agent, paid a visit to him, apparently with the dual purpose of pursuing their investigation of Richards and of developing an informant with respect to Friedland's activities. Richards offered to provide information on Friedland when released. He did, in a manner discussed in part II of this opinion. The district judge credited Best's testimony.

If this were all, we could readily affirm the court's ruling that the Government had proved by a preponderance of the evidence, United States v. Schipani, 289 F.Supp. 43, 63-64 (E.D.N.Y.1968), aff'd, 414 F.2d 1262 (2 Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970), that its focusing on Friedland's possible involvement with counterfeit bonds did not result from the illegal eavesdropping. Friedland's counsel asserts, however, that his efforts to show that this may not have been all were improperly restricted. On several occasions, both by written and oral demand, he sought to examine the bugging agents and/or their supervisor both to determine the completeness of the logs and, more pertinently, to determine whether the revelation of Friedland's unsavory activities might not have reached Best's squad, e. g., by oral reports from a bugging agent to a member of the squad or via such reports by the bugging agents or their supervisor to FBI headquarters and relayed by it to some member of Best's squad. Some support for this is given by testimony of Richards that at one time Best or the other FBI agent who accompanied him to the state prison mentioned Tortorello as a "connection" of Friedland's. Reading United States v. Schipani, supra, 289 F.Supp. at 62-63, to mean that Friedland's conviction would be tainted if there were any causal relationship between the bugging agents' discovery that Friedland was something other than a respectable member of the bar and the investigation of him launched many months thereafter,³ the defense claims that it was entitled to explore the dissemination issue more fully and that the judge erred in foreclosing it from the challenge to Best's testimony which such exploration might have made possible.

The judge denied the requests of the defense to go further on the basis that, in light of his belief in Best, such action was "well within this court's discretion," 316 F.Supp. at 463, citing United States v. McCarthy, 422 F.2d 160 (2 Cir.), petition for cert. dismissed pursuant to Supreme Court Rule 60, 398 U.S. 946, 90 S.Ct. 1864, 26 L.Ed.2d 286 (1970). However, in McCarthy there was "no showing of any pertinent additional information that could have been produced by calling all the monitors who prepared the logs," 422 F.2d at 164; and in United States v. Granello, 403 F.2d 337, 339 (2 Cir. 1968), cert. denied, 393 U.S. 1095, 89 S.Ct. 878, 21 L.Ed.2d 785 (1969), cited by McCarthy, the sole basis for the request was the possibility, unsupported by anything in the logs, that these may have been incomplete, and we upheld the denial of the request on the ground that "Granello did not raise a sufficient question concerning the incompleteness of the logs to require that the agents be called." The controlling case is Alderman v. United States, 394 U.S. 165, 180-187, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), where, after discussing the requirements of disclosure of surveillance records, the Court stated, 394 U.S. at 185, 89 S.Ct. at 973:

None of this means that any defendant will have an unlimited license to rummage in the files of the Department of Justice. Armed with the specified records of overheard conversations and with the right to cross-examine the appropriate officials in regard to the connection between those records and the case made against him, a defendant may need or be entitled to nothing else. Whether this is the case or not must be left to the informed discretion, good sense, and fairness of the trial judge.

This leaves unclear who are "the appropriate officials" whom the defendant must be permitted to cross-examine. No substantial further illumination on this point was furnished by Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969). There the Court affirmed the denial of a request to examine additional surveillance records which the district court had examined in camera and had declined to turn over on the ground that the defendant lacked standing to compel the disclosure. The Court rejected petitioner's argument that disclosure was nevertheless required since "neither the Government nor the District Court was able to determine with a certainty which conversations petitioner had been a party to," and stated that "nothing in Alderman * * * requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance." In United States v. Alderisio, 424 F.2d 20, 24 (10 Cir. 1970), an appeal from the judgment following the hearing on remand in Alderman, where, with respect to the Chicago-based aspect of the Alderisio investigation only the investigating agent had testified, the court of appeals directed production of the supervisor of the Chicago-based agent to testify whether any additional overhearings appeared in his records of the Alderisio investigation, "because the extent of dissemination is so critical to a possible fourth amendment claim." However, the case for requiring such production in Alderisio was considerably stronger than here. Compare Nolan v. United States, 423 F.2d 1031, 1045 (10 Cir. 1969), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970).

We find it unnecessary to decide whether the district court improperly limited the defense, since we do not accept the premise that if Best's squad was put on notice, through receipt of information obtained from illegal bugging, that Friedland was the sort of person who would bear watching, this alone would immunize him from investigation of different criminal activities and from prosecution on the basis of facts about them learned in a lawful way. Judge Learned Hand wrote for this court, on the third appeal in United States v. Nardone, 127 F.2d 521, 523 (2 Cir.), cert. denied, 316 U.S. 698, 62 S.Ct. 1296, 86 L.Ed. 1767 (1942), involving wiretaps rendered unlawful by § 605 of the Federal Communications Act:

The question therefore comes down to this: whether a prosecution must show, not only that it has not used any information illicitly obtained, either as

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