United States v. Hoffa

• Decision Date: 11 January 1971
• Docket Number: No. 18006.,18006.
• Citation: United States v. Hoffa, 436 F.2d 1243 (7th Cir. 1971)
• Parties: UNITED STATES of America, Appellee, v. James R. HOFFA, Benjamin Dranow, Zachary A. Strate, Jr., S. George Burris, Abe I. Weinblatt and Calvin Kovens, Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

436 F.2d 1243 (1970)

UNITED STATES of America, Appellee, v. James R. HOFFA, Benjamin Dranow, Zachary A. Strate, Jr., S. George Burris, Abe I. Weinblatt and Calvin Kovens, Appellants.

No. 18006.

United States Court of Appeals, Seventh Circuit.

August 5, 1970.

Certiorari Denied January 11, 1971.

Frank Ragano, Tampa, Fla., Maurice J. Walsh, Harvey M. Silets, Chicago, Ill., Morris A. Shenker, St. Louis, Mo., Louis G. Shushan, New Orleans, La., Jacques M. Schiffer, Rockville Centre, N. Y., for appellants.

Marshall Tamor Golding, Criminal Division, Department of Justice, Washington, D. C., William J. Bauer, U. S. Atty., Chicago, Ill., Will Wilson, Asst. Atty. Gen., Jerome M. Feit, U. S. Dept. of Justice, Washington, D. C., for appellee; D. Arthur Connelly, Asst. U. S. Atty., of counsel.

Before SWYGERT, Chief Judge, and DUFFY and CASTLE, Senior Circuit Judges.

Certiorari Denied January 11, 1971. See 91 S.Ct. 455, 457.

DUFFY, Senior Circuit Judge.

This is the third time that an appeal in the case at bar has been before this Court. Our previous decisions in this case are reported at 367 F.2d 698 (October 4, 1966) and 402 F.2d 380 (August 15, 1968).

The indictment herein contained twenty-eight counts. The first twenty-seven counts charged substantive violations of the mail and wire fraud statutes (18 U. S.C. §§ 1341, 1343). The twenty-eighth count charged a conspiracy to commit the substantive counts.

After a jury trial, all appellants were convicted on the conspiracy count and each appellant was convicted on certain of the substantive counts.

The Court directed a judgment of acquittal of all defendants on counts 2, 5, 11, 26 and 27. The Court granted the motion of the Government to dismiss counts 10 and 18.

Upon appeal (first appeal) the judgments of convictions were affirmed by this Court with one judge dissenting. On that appeal a petition to this Court for a rehearing en banc was denied, with two judges of the entire Court dissenting.

In response to a petition for a Writ of Certiorari (No. 1003, O.T.1966), the Government disclosed that on December 2, 1963, it had overheard a conversation between defendant Burris and one Benjamin Sigelbaum at the latter's office in Miami, Florida, in which Burris discussed certain matters at most peripherally relevant to this case and which were neither introduced in evidence nor used as a basis for any investigative leads.¹

The Supreme Court remanded the case to the District Court for a hearing to determine whether that or any other electronically overheard conversations had tainted any of the convictions. Hoffa et al. v. United States, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1966).

The District Court was instructed by the Supreme Court that if it found taint from any such intercepted conversations, it was to direct a new trial as to the particular defendant whose conviction was thus found to be infected. If the District Court found no taint, it was instructed to enter final judgments of convictions, 387 U.S. at page 234, 87 S.Ct. 1583.

The Supreme Court expressly limited the issue to be presented when it stated: "In such proceedings, the District Court will confine the evidence presented by both sides to that which is material to questions of the content of this and any other electronically eavesdropped conversations, and of the relevance of any such conversations to petitioners' subsequent convictions." 387 U.S. at pages 233-234, 87 S.Ct. at page 1584.

An evidentiary hearing was held before the District Court. That Court found that the Government had prior knowledge of all the information revealed by the Burris-Sigelbaum conversation. United States v. Hoffa, 273 F. Supp. 141, 143-144 (N.D.Ill., 1967). The Court also found that none of the convictions of any of the other defendants was tainted.

At the hearing before the District Court, the Government also tendered to the Court for an in camera inspection, the records of nine additional overhearings of conversations in which various of the defendants were possible participants. After inspection, the District Court found the tendered records consisted of "* * * extremely brief overhearings that contain no information either remotely or peripherally relevant to the transactions and evidence on which these defendants were indicted and convicted." (273 F.Supp. at page 143).

There was an additional finding by the District Court that defendants had failed to establish that the Government possessed any additional and unproduced records of electronically overheard conversations which involved any of the defendants. (273 F.Supp. at page 147).

On the appeal to this Court (second appeal), we affirmed the District Court with one judge dissenting. Our majority opinion sustained the finding of the District Court that the Burris-Sigelbaum conversation which occurred six months after the return of the indictment, was not used by the Government and that any possible relevant information in that conversation was known to the Government from wholly independent and lawful sources. We also held that after an examination of the record of the nine additional overhearings, the District Court was correct in finding that "* * * nothing contained therein is relevant to the issues in this case." (402 F.2d at page 383). We approved the conclusion of the District Court that none of the convictions was tainted by the use of improperly obtained evidence. (402 F.2d at page 384).

Again, a petition for a Writ of Certiorari was filed. Again, the Supreme Court remanded this case together with a considerable number of other somewhat similar cases, to the District Court "* * * for further proceedings in conformity with Alderman v. United States * * *." Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 1164, 22 L.Ed.2d 297 (1969).

In Alderman et al. v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968) the Supreme Court ruled that in order for a defendant to have an adequate opportunity to prove in the District Court that his conviction was tainted by electronic surveillance, there must be turned over to him without being screened in camera by the trial judge, all surveillance records as to which he has standing to object. However, the Supreme Court made clear that disclosure would be limited to such transcripts and that a defendant will not "* * * have an unlimited license to rummage in the files of the Department of Justice." Alderman,supra, 394 U.S. at page 185, 89 S.Ct. at 973.

It was on the oral argument before this Court on the second appeal (402 F. 2d at pages 384-385) that a Government attorney handed to this Court a sealed folder containing F.B.I. logs of conversations of certain attorneys which had been overheard. At the suggestion of the Government attorney, we examined the logs and it was readily apparent that the conversations overheard had no reference whatsoever to the issues which were before our Court or had been before the District Court.

In the five overhearings of conversations which may have involved some of defendants' attorneys, one occurred two years after the conclusion of the trial. The first one was between Tony Accardo and several individuals one of whom was Richard Gorman who was trial attorney for defendant Burris. However, the conversation pertained entirely to the indictment of Accardo for income tax evasion and had nothing to do with any of the defendants in this case.

It seemed like a useless gesture which would cause further delay to send these logs back to the District Court. We also realized that being a part of the record on any appeal which might be taken from our decision, the Supreme Court could readily examine same and, in our view, would necessarily come to the same conclusion, to-wit: that the conversations of the attorneys had no connection whatsoever with the issues which were before us. The defendants certainly have no standing to require production of logs of overhearings of conversations between their attorneys and other clients concerning matters totally unrelated to this case.

In Alderman, the Court noted (394 U. S. at page 185, 89 S.Ct. at 973) that "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."

We hold that in this respect the trial judge did exercise his informed discretion and good sense, and that there was no indication anywhere in the record as to any unfairness on his part.

In the instant case, the nine overhearings previously examined in camera were turned over to the defendants. The defendants were to use these logs in an attempt to demonstrate that their convictions had been tainted thereby. This was once again...