United States v. Hoffa, 20271

• Decision Date: 21 January 1971
• Docket Number: No. 20271,20272.,20271
• Citation: 437 F.2d 11
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Ewing KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

437 F.2d 11 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Ewing KING, Defendant-Appellant.

Nos. 20271, 20272.

United States Court of Appeals, Sixth Circuit.

January 21, 1971.

Morris A. Shenker, St. Louis, Mo. (James P. Hoffa, Detroit, Mich., Harvey

M. Silets, Chicago, Ill., Cecil Branstetter, Nashville, Tenn., Jacques M. Schiffer, Rockville Center, Long Island, N. Y., on the brief), for appellants Hoffa, Parks and Campbell.

Moses Krislov, Cleveland, Ohio (Harold E. Brown, Brown & Frazier, Chattanooga, Tenn., on the brief), for appellant King.

Robert J. Rosthal, Dept. of Justice, Washington, D. C. (Will Wilson, Asst. Atty. Gen., Jerome M. Feit, Michael T. Epstein, Attys., Dept. of Justice, Washington, D. C., John L. Bowers, U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before PECK, McCREE and BROOKS, Circuit Judges.

BROOKS, Circuit Judge.

In March of 1964 defendants-appellants, James R. Hoffa, Thomas Ewing Parks, Larry Campbell and Ewing King, were convicted for endeavoring to influence, impede and intimidate jurors in the discharge of their duties. (18 U.S. C. § 1503 — The Federal Obstruction of Justice Statute). The alleged jury tampering involved attempts by these defendants to influence jurors who served on a case in which Hoffa was a defendant — the Test Fleet Case. Following the convictions for jury tampering, appellants filed motions for new trial which were denied and each conviction and the denial of the motions for new trial were affirmed by this Court, United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), affirmed 385 U.S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966), reh. denied 386 U.S. 940 and 386 U.S. 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). A second group of motions for new trial were filed by appellants and denied. See United States v. Hoffa, 247 F.Supp. 692 (D.C.1965), affirmed 376 F.2d 1020 (6th Cir. 1967), cert. denied 389 U.S. 859, 88 S.Ct. 102, 19 L.Ed.2d 124 (1967). Appellants then filed a third round of motions for a new trial alleging newly discovered evidence. These motions were also denied, United States v. Hoffa, 247 F.Supp. 692 at 698 (D.C. 1965), affirmed 382 F.2d 856 (6th Cir. 1967), cert. denied 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (1968). Finally, a fourth group of motions for new trial were filed, and it is a result of these motions that this case comes to us for review. This fourth attempt to obtain a new trial was denied by the District Court, United States v. Hoffa, 268 F. Supp. 732 (D.C.1967), and affirmed by this Court, 398 F.2d 291 (6th Cir. 1968). Appellant King did not perfect an appeal from the denial of his fourth motion for a new trial. After this Court affirmed the last denial of the motions for a new trial, 398 F.2d 291 (6th Cir. 1968), a certiorari petition was filed in the United States Supreme Court. While this certiorari petition was pending, the Solicitor General of the United States, complying with the Supreme Court's decision in Kolod v. United States, 390 U. S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968), disclosed that "although none of these petitioners was ever the subject of electronic surveillance directed against him two of the petitioners did participate in conversations which were monitored during the course of electronic surveillance directed against others." The Supreme Court then granted certiorari, set aside the judgment of this Court, and remanded the case to the District Court to determine "whether the surveillances at issue were unlawful." See, Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969).

While the Supreme Court's remand order applied to only appellants Hoffa, Parks and Campbell, the District Court permitted appellant King to participate in the remand hearing treating his motion as a petition for habeas corpus. At the time of the remand hearing, all appellants except Hoffa had completed serving their sentences. After a six day evidentiary hearing to determine the lawfulness of the surveillance, the District Court concluded "that no violation of any defendant's rights has been shown under the direction given by the United States Supreme Court in Giordano v. United States" and affirmed the convictions and sentences imposed upon the defendants. See, United States v. Hoffa, 307 F.Supp. 1129 (D.C.1970). It is from this ruling that appellants have now appealed. As can readily be seen, the history of this litigation is long and involved. However, on this appeal we are only presented with the question of the correctness of the District Court's ruling on the legality of the electronic surveillances, and we affirm that determination.¹

The electronic surveillances in these cases were accomplished by wire tapping of telephones and "bugging" (strategic placing of an electronic receiving device so as to overhear the conversation of individuals within proximity of the device). The Hoffa surveillances consisted of four "buggings" of the executive offices of two gambling casinos in Las Vegas, Nevada, and three monitorings of radio telephone conversations over special FM frequencies in Detroit, Michigan. The District Court concluded that these surveillances did not violate the rules established in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963), as to surveillances accomplished by means of trespass, and none of appellant Hoffa's constitutional rights were violated.

Appellant Campbell's surveillance consisted of some 254 monitorings of radio telephone conversations. These monitorings were accomplished by simply listening in on a special FM frequency that the Teamsters Union used in transacting business by radio telephone. The District Court concluded that since anyone with an FM receiver could have heard these conversations, there was no violation of appellant Campbell's Fourth Amendment rights.

There were no electronic surveillances of appellant Parks, and the thrust of his argument on this appeal is that the surveillances of Hoffa, Campbell and King, if illegal, in some way violated his constitutional rights. This same argument is made by appellants Hoffa and Campbell with respect to the surveillances of appellant King. On this appeal, neither Hoffa nor Campbell challenge the District Court's ruling on the legality of their respective surveillances, but rather question the correctness of the District Court's ruling on the legality of King's surveillance. Since it is concluded that the King surveillance was legal, it is not necessary to reach the issue of whether appellants Hoffa, Campbell and Parks have standing to raise alleged violations of appellant King's constitutional rights.²

There was only one electronic surveillance (a "bugging") of appellant King, and it is this surveillance appellants argue was unlawful. An associate of the appellants who was also a government informant had his automobile wired with an electronic receiver and tape recorder. The informant arranged a meeting with appellant King and the two men rode around Nashville, Tennessee, in the informant's automobile engaging in a ninety minute conversation which was taped.

Appellant King raises several constitutional challenges to this surveillance. First, it is alleged that the surveillance violated his Fourth Amendment right to be free of illegal searches and seizures. The taping of the conversation between the government informant and King took place with the consent of the informant, see, Kaufer v. United States, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L. Ed. 1270 (1952); cf. United States v. Osborn, 350 F.2d 497 (6th Cir. 1965), affd. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and was not the by-product of a trespass onto appellant's premises, see, Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Cf. United States v. Hoffa, 349 F.2d 20, 48 (6th Cir. 1965). Thus, under existing Supreme Court interpretation, it cannot be said that King's Fourth Amendment rights were violated by the fashion in which this electronic surveillance was accomplished.

Second, King alleged that his Fifth and Sixth Amendment rights were violated by the government's surveillance of this conversation. It is argued that the surveillance was constitutionally impermissible because it resulted in his giving evidence against himself without being advised of his Fifth Amendment rights or his right to assistance of counsel. The difficulty with appellant's challenges to the surveillance on Fifth and Sixth Amendment grounds is that they require an unwarranted extension of existing case precedents. Respecting the claim of violation of appellant's Fifth Amendment right, present case law, notably Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires some element of compulsory self-incrimination. Here there was neither an in-custodial interrogation nor any compelling pressure applied which forced appellant to incriminate himself. See also, Hoffa v. United States, 385 U. S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Furthermore, appellant's attack on the surveillance based on alleged violation of his Sixth Amendment right to assistance of counsel does not find support in present case law. See, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In Escobedo there was an in-custodial interrogation after arrest without assistance of counsel and in Massiah the surreptitious surveillance took place after indictment following Massiah's retention of counsel, pleading not guilty to the charge for which he was indicted and his release on bail. In this case...