said surveillance; to determine the legality of any of the said surveillance; and to determine the extent to which said surveillance "tainted the evidence upon which the indictment is based and which the government intends to use at trial."
In the third part of the motion defendants inferentially seek to suppress any evidence "resulting from the use of unlawful surveillance."
Finally, the motion asks that the indictment be dismissed if the hearing should disclose that it was returned as a result of illegally obtained evidence.
The government opposes the motion in its entirety, admitting, however, that conversations of Glick, one of the defendants, were overheard by the Federal Government during the course of an electronic surveillance expressly authorized by the President acting through the Attorney General, which the government contends was lawful. The government further admits that conversations which probably were of McAlister, another defendant, were overheard by the same type of electronic surveillance, which also the government contends was lawful. The government avers also that these overhearings were in no way related to the issues in this case and that there will be no evidence produced at trial that was derived therefrom.
Except as indicated below, we will deny at this time the defendants' motion generally but reserve to them or any of them the right to renew such motion after trial.
We do not mean to infer that defendants are not entitled to disclosure of illegally obtained evidence to which they have standing to object, nor to the suppression at trial of such evidence, and we will direct the government to scrupulously avoid the introduction at trial of any evidence it might have secured as a result of any unlawful act. The government well knows that it has a heavy burden of conducting a trial free from untainted trial evidence and the Government Attorney has acknowledged this and has stated in his brief that a review of the records of the Department of Justice reveals no overhearings of any of the defendants except Glick, and possibly McAlister, as we have hereinabove noted, and as to these he earlier represented that these conversations were in no way related to the facts of this case.
We will suppress, however, the use by the government of any and all evidence obtained by the government as a direct result of the wiretaps or electronic surveillance of conversations of Glick or McAlister. See, United States v. United States District Court for Eastern District of Michigan, Southern Division, 444 F.2d 651, 6th Cir. 1971, now on appeal to the United States Supreme Court; United States v. Hilliard, Cr. No. 69-141, May 4, 1971, N.D. Cal.; United States v. Smith, 321 F. Supp. 424 (C.C.D. Cal. 1971); United States v. Donghi, Cr. No. 1970-81, N.D.N.Y. 1971. An in camera examination of logs of such conversations by the court is not a valid substitute for an adversary hearing thereon even though we believe that they contain nothing relevant to this case, Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), and we cannot accept the government's statement that there is no arguable relevancy in such conversations. We will, however, accept the government's representation that no other defendants' conversations have been overheard, especially since defendants offer nothing substantial to refute the government's representations. See, Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939); United States v. Addonizio, 313 F. Supp. 486 (D.N.J. 1970), aff'd, 451 F.2d 49 (3d Cir. 1971).
Defendants rely on Alderman, supra; 18 U.S.C. § 2518(10), the Omnibus Crime Control and Safe Streets Act of 1968, Title III § 802, 82 Stat. 197; and Rules 16(a) and 41(e) Fed. R. Crim. P. for their request for a pre-trial hearing to determine if there were other illegal surveillances. None of these authorities require a hearing before trial, nor can we, as defendants suggest, find such requirement in In re Egan, 450 F.2d 199 (3d Cir. 1971).
The time for such hearing is discretionary with the court, Nardone v. United States, supra ; and in nearly all cases where the matter has been considered it has been held that a post-trial hearing was preferable if required at all. See, United States v. Addionzio, supra ; United States v. Nolan, 420 F.2d 552 (5th Cir. 1969), cert. denied, 400 U.S. 819, 91 S. Ct. 36, 27 L. Ed. 2d 47 (1970); United States v. Prebish, 47 F.R.D. 578 (S.D. Fla., Miami Div. 1969); United States v. McCarthy, 292 F. Supp. 937 (S.D.N.Y. 1968); United States v. Birrell, 269 F. Supp. 716 (S.D.N.Y. 1967). In the Birrell case, as restated in Prebish at 579, of 47 F.R.D. the advantages for postponing the hearing until after trial, among others, were, found to be ". . . the possibility that a hearing might not be necessary by reason of defendants' acquittal; the avoidance of pretrial publicity; the government's awareness of the liabilities of using tainted evidence; the elimination of consideration of evidence which might not be used at trial and the accompanying saving in judicial time and resources."
It is quite likely that a hearing on the question of the possibility of discovering unlawful electronic surveillance in the light of defendants' very broad motion would take longer than the trial itself and in reality could approximate a double trial. A conspiracy case by its very nature makes it most difficult to determine relevancy of each parcel of evidence as the case unfolds and this conceivably could give rise to a post-trial hearing even though a pre-trial hearing had been held. United States v. Birrell, supra ; United States v. McCarthy, supra.
Considering all of the factors in this case the court concludes that any inquiry into the issue of taint if such inquiry is needed is best left until after the trial, and at that time whatever disclosure is required will be ordered.
Turning now to that part of the motion concerning the indictment, the indictment will not be quashed.
After a post-trial hearing, if one is required, defendants may renew their motion to dismiss the indictment and at that time the court can properly rule thereon. In Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397 (1956), in denying defendant's motion to dismiss an indictment because it was allegedly based on incompetent evidence, the court said:
"If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury."