United States v. Hoffa

• Decision Date: 02 January 1970
• Docket Number: Crim. No. 11989.
• Parties: UNITED STATES of America v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King.
• Court: U.S. District Court — Eastern District of Tennessee

307 F. Supp. 1129

UNITED STATES of America v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King.

Crim. No. 11989.

United States District Court E. D. Tennessee, S. D.

January 2, 1970.

Robert J. Rosthal, Michael T. Epstein, William O. Bittman, Austin Mittler, Daniel Schultz, Theodore George Gilinsky, U. S. Dept. of Justice, Washington, D. C., John Bowers, U. S. Atty., Chattanooga, Tenn., for the United States.

Morris A. Shenker, St. Louis, Mo., Daniel B. Maher, Washington, D. C., defendant for James R. Hoffa.

Jacques M. Schiffer, Rockville Centre, N. Y., for defendant Thomas Ewing Parks.

Cecil D. Branstetter, Nashville, Tenn., for defendant Larry Campbell.

Harold E. Brown, Chattanooga, Tenn., P. D. Maktos, Washington, D. C., for defendant Ewing King.

OPINION

FRANK W. WILSON, District Judge.

The defendants, James R. Hoffa, Thomas Ewing Parks, Larry Campbell, and Ewing King, were convicted on March 4, 1964, of willfully endeavoring to influence, intimidate, and impede jurors in the discharge of their duties, in violation of the Federal Obstruction of Justice Statute (18 U.S.C. § 1503). The subsequent history of this litigation is set forth in a footnote.¹ Suffice it here to say that the conviction of each defendant was affirmed by the Court of Appeals and by the United States Supreme Court and the defendants were ordered into custody to serve their respective sentences. Each defendant has now completed serving his sentence other than the defendant Hoffa.

The case is presently before the Court upon the defendants' fourth motion for a new trial. The motion was originally filed in this court upon February 28, 1967, one day following the action of the United States Supreme Court in affirming the defendants' convictions and in denying a rehearing thereon. The defendants' fourth motion alleged that the defendants had obtained newly discovered evidence that they and their attorneys were subjected to unlawful surveillance by government agents by means of wiretapping, electronic eavesdropping, or other intrusions both prior to and during the trial in which they were convicted. The allegations of the motion being denied by the Government, the Court set an evidentiary hearing. Upon the date of the evidentiary hearing, however, counsel for the defendants declined to proceed, advising the Court that as a matter of legal ethics they did not feel that they could proceed with the evidentiary hearing, nor, as a matter of obligation to their clients, did they feel that they could disclose unto the Court the reasons for so declining to proceed. The Court thereupon overruled the fourth motion for new trial upon the default of the defendants and upon the record before the Court. United States v. Hoffa, D.C., 268 F.Supp. 732 (1967). No appeal was taken by the defendant King from the order of this Court denying the fourth motion for new trial. The other defendants did appeal. The Court of Appeals affirmed the action of this Court in denying the fourth motion for new trial. United States v. Hoffa, 6 Cir., 398 F.2d 291 (1968). A petition for certiorari was then filed by the defendants Hoffa, Parks and Campbell. While this petition was pending before the United States Supreme Court, and in response to the petition, the Solicitor General of the United States made the following representation unto that Court:

"In light of this Court's decision in Kolod, we wish to disclose to the Court 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. (Brief for U. S. in opp. # 546 O.T. 1968)"

Upon this disclosure being made by the Government, the Supreme Court granted the petition for certiorari, set aside the judgment of the Court of Appeals, and remanded the case to this Court. See Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). The directions on remand, as stated in the Giordano case, were:

"* * * The judgments of the Courts of Appeals in these cases are vacated, and the cases remanded to the respective District Courts for further proceedings in conformity with Alderman v. United States, Ivanov v. United States, and Butenko v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. It is not evident from the records in some of these cases whether the surveillances at issue were unlawful. It may be that the overhearings in some instances were not achieved by trespass, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, and Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274, or for some other reasons were not unlawful. As we held in Alderman, Ivanov, and Butenko, 37 U.S.L.W., at 4190, n. 3, 22 L.Ed.2d at 184, `the District Court must develop the relevant facts and decide if the Government's electronic surveillance was unlawful.' Of course, a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary. Similarly, it is not clear that each petitioner has standing to assert the illegality of the surveillance or of the introduction of its fruits. As in Alderman, Ivanov, and Butenko, these issues are to be resolved by the District Courts in the first instance."

Turning to the case of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, for further guidance on this remand, the record there reveals that the Government first disclosed in the United States Supreme Court that it had engaged in electronic surveillance of the defendants. Concluding that an issue might exist as to whether such electronic surveillance violated the search and seizure provisions of the Fourth Amendment and that, if so, a further issue might exist as to whether any evidence so obtained tainted the defendants' trials, the Supreme Court remanded the case of each defendant to the District Court for determination of these issues. The Court defined the issues for determination on remand in the following language:

"The judgment(s) * * * are vacated, and each of the cases is remanded to the District Court for further proceedings consistent with this opinion, that is, 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 conversations which may have been overheard through that surveillance."

In the light of the directions in Giordano and in Alderman, it is appropriate at this point to delineate certain of the guidelines provided by the Supreme Court for conducting proceedings of this nature. The Court does not here propose to undertake a general discussion of the developments in the law of searches and seizures, beginning with Olmstead v. United States, 277 U.S. 438. 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376 (1928), which have resulted in wiretapping, electronic surveillance and eavesdropping being considered a form of search and seizure subject to the Fourth Amendment limitations.² Suffice it to say that the present state of the law on the subject is such that evidence obtained by the Government as a result of electronic surveillance may not be used upon a trial when it has been obtained in violation of the Fourth Amendment rights of an accused, and a conviction obtained as a result of the use of such evidence must be set aside and a new trial granted.

Initially it should be noted that since the surveillances involved in this case occurred prior to the decision of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the rule of that case rendering all electronic eavesdropping upon private conversations within the reach of the search and seizure provisions of the Fourth Amendment would have no application. See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969). See also Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1164, 22 L.Ed.2d 297 (1969). Rather, the legality or illegality of any surveillance here brought to light must be judged by the pre-Katz rule of trespass or physical intrusion. See Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322. Accordingly, only such electronic surveillance as may be shown to have been conducted by means of a trespass or a physical intrusion by government agents could be found to be within the Fourth Amendment limitations.

A further guideline was established in Alderman wherein the Court held that any accused would be entitled to suppression of government evidence originating in electronic surveillance violating his own Fourth Amendment rights to be free of unreasonable searches and seizures and "such violation would occur if the United States unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises, whether or not he was present or participated in those conversations." Thus, the Court will here be concerned both with the overhearings of any defendant and with overhearings upon the premises of any defendant, even though the defendant did not participate in the conversations and even though he was absent at the time.

Additional guidelines laid down in Alderman relate to the standing of any particular defendant to object to evidence obtained by electronic surveillance. Not every defendant is entitled to object, even though surveillance evidence may have been obtained by the Government in violation of a co-defendant's Fourth Amendment rights. The rule in this regard is stated thus in Alderman:

"The established

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