APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges
This appeal from a new final conviction for violation of a national security statute presents questions relating to the use in a criminal prosecution of electronic eavesdropping interceptions made in 1963. The case has a long and interesting history.
Appellant Igor Ivanov, a Soviet national, was charged with having conspired with one John Butenko, an American, to violate the federal espionage statute, 18 U.S.C. § 794(a) and (c)*fn1 (Count I), from April to October in 1963, and with having conspired to violate the statutory prohibition against acting as an agent of a foreign government without prior notification to the Secretary of State, 18 U.S.C. § 951*fn2 (Count II). Following a jury verdict of guilty, appellant Ivanov was sentenced to twenty years' imprisonment on Count I and five years' imprisonment on Count II, the sentences to run concurrently. This court affirmed the judgment of conviction against him on Count I and directed his acquittal on Count II. United States v. Butenko, 384 F.2d 554 (3d Cir. 1967). Appellant then filed petitions for certiorari in the United States Supreme Court. While the cases were there pending, the Solicitor General revealed that the United States had engaged in certain electronic surveillances and that Butenko and Ivanov had been overheard. The Supreme Court ordered a remand to the district court 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."*fn3 Alderman v. United States, 394 U.S. 165, 186-187 (1969).
On remand, the government conceded that one set of interceptions was illegal but convinced the district court that these did not taint the conviction. The district court found a second set of interceptions to have been properly authorized by virtue of the President's prerogative to obtain foreign intelligence information, denied appellant's application for disclosure, denied an evidentiary hearing pertaining thereto, and entered a new judgment of conviction. United States v. Ivanov, 342 F. Supp. 928 (D.N.J. 1972). This appeal followed.
The precise nature of the espionage conspiracy was a scheme to transmit to the Union of Soviet Socialist Republics the plan of a command and control system of the Strategic Air Command (SAC). Given the name "465-L," the system was being produced by International Electronic Company, a subsidiary of International Telephone and Telegraph, and was an automatic electronic system which enabled the commander of SAC to alert and deploy his forces and provide him with an up to the minute status of the total force. Additional details on the nature of this project are summarized in our earlier opinion. 384 F.2d at 557. We found that "there was substantial evidence to buttress the conviction" of Butenko, then employed as a control administrator at the International Electronic Company, and that "sufficient evidence was offered by the Government to show [Ivanov's] intricate involvement with the conspiracy." 384 F.2d at 563.
At trial the government proved that on October 29, 1963, appellant was observed in Englewood, New Jersey, with two other Soviet Nationals, Pavlov and Romashin, in the vicinity of the Englewood railroad station parking lot. An automobile "driven by Butenko, drove into the railroad station lot, parked, turned off the headlights and turned on the parking lights and within a few minutes the Soviet automobile, now driven by Pavlov with Ivanov in the right front seat, came into the parking lot, signaled by turning off headlights and turning on parking lights. Here, there was a direct confrontation between Ivanov and Butenko and several minutes later, when the defendants were arrested, the briefcase of Butenko was found in the Soviet automobile." 384 F.2d at 563-564.
Two sets of logs reflecting electronic surveillances were introduced at the remand hearing and form the backdrop of this appeal. The first set covered the periods from May 15, 1963, to June 11, 1963, and from June 27, 1963, to August 13, 1963, and were designated as "4001-S" and "4002-S." These logs were disclosed to appellant. The government conceded that these logs represented illegal surveillances but contended that their use did not taint the conviction. The district court agreed. A second set of logs was not shown to appellant or his counsel but was examined by the court in camera. The government represented that these logs reflected intercepted conversations of Ivanov, duly obtained by the Department of Justice in the exercise of the President's right to obtain foreign intelligence information. These sealed documents, government exhibits A-1, A-2, and A-3, were accompanied by an affidavit of Attorney General John N. Mitchell setting forth the circumstances of, and authority for, the surveillance. The court ruled that this second set of logs was lawfully obtained under the theory set forth by the Attorney General and refused Ivanov the opportunity of examining them or an evidentiary hearing relating thereto.
Appellant mounts separate arguments relating to each set of logs. He contends that the first set of logs was incomplete and, therefore, the court erred in its ruling that the use of these illegal surveillances did not taint the conviction. Secondly, he argues that the use of the surveillance evidence from the second set of logs was illegal, contravening Section 605 of the Communications Act of 1934,*fn4 or, alternatively, that use of this evidence by the prosecution violated Fourth Amendment protections guaranteed him as an alien. See Au Yi Lau v. United States Immigration & Naturalization Service, 445 F.2d 217, 223 (D.C. Cir.), cert. denied, 404 U.S. 864 (1971), stating that aliens in this country, like citizens, are protected by the Fourth Amendment. See generally Kwong Hai Chew v. Colding, 344 U.S. 590, 596-597 (1953).
Some factual background to the first set of logs is necessary. The actual tapes were not available; only logs reflecting a summary of their contents were presented. Government witnesses testified that it was standard practice to erase tapes which were not productive of meaningful evidence or leads, and because these surveillances were unproductive, the taped interceptions were not preserved. The court found as a fact: "Rarely did intelligible adult conversations come through, and no clear conversation of Ivanov was received over the equipment." 342 F. Supp. at 933. Using the test of United States v. Delerme, 457 F.2d 156 (3d Cir. 1972), we believe there is substantial evidence to support this finding.*fn5
Typical of the testimony adduced at the hearing was that of Agent McWilliams who supervised the wiretapping. The district court reported: "McWilliams admitted that the electronic surveillance of Ivanov conducted under his supervision produced no evidence that would have warranted Ivanov's arrest for engaging in any unlawful activity." Id. Agents McWilliams, Martin, Conway and Manning testified that no use was made of the results of those surveillances and no reports were furnished pertaining to their contents. The Assistant United States Attorney who prosecuted the case and the two Department of Justice agents who assisted him testified that they were unaware of any electronic surveillance.
Indeed, the district court observed throughout its opinion:
The evidence adduced at the hearing conclusively shows that Ivanov's conviction was not in any way tainted by reason of the unlawful electronic surveillances conducted by the Government.
There is no question in the Court's mind, based on personal knowledge of the trial, and a careful review of the evidence adduced at the taint hearing, that the arrest and subsequent conviction of Ivanov resulted from the Government's independent investigation of the case, in which electronic surveillances 4001-S and 4002-S played no part.
The electronic surveillances in this case were ineffective and unsuccessful. What they produced was, at best, innocuous, even when viewed by the specially trained and experienced FBI Agents. An examination of the logs, reflecting summaries of the surveillance tapes, reveals nothing more than a history of small talk and unintelligible chatter of such obvious insignificance that the FBI discontinued its electronic surveillance of Ivanov on June 18, 1963, because of its demonstrated consistent showing of non-productivity.
The Court finds no specific evidence of taint in this case. Even assuming, arguendo, that some such evidence existed, the Court is satisfied beyond a reasonable doubt that in this case the Government has met its ultimate burden of showing that no substantial or measurable portion of the evidence used against Ivanov at his trial was tainted.
Finally, Ivanov mounts a somewhat technical argument relating to the May 26 and May 27 surveillances. The government contended that the logs for these dates were before the district court. Appellant claimed that these were not the logs for May 26 and May 27, but rather, the logs for May 21 and May 22. The opinion of the court admits the date is unclear, and states concerning one log, it "could be either May 21 or May 26," and concerning the other, "the date appearing on C-6-2 could be read as either May 22, or May 27, 1963." 342 F. Supp. at 940.
From this appellant argues that the logs for May 26 and May 27 were destroyed or lost, and that these logs contained exclupatory or contradictory evidence. Additionally, appellant continues, if the logs for May 26 and May 27 are missing, there exists a possibility that evidence admitted at trial was the product of leads obtained from, and therefore tainted by, the illegal May 26 and May 27 surveillances; that is, because these logs were not before the court, there could be no finding that any of the government evidence was derived from legitimate independent sources.
As the district court's opinion demonstrates, these conclusions do not follow. One log was compiled for each day. There were ten days in May in the twenties - May 20 through May 29. There were ten logs for this period. "While there may be some question as to which log is which, the Court is satisfied that all logs covering the period May 20, through May 29, 1963, were in Court and in the possession of Ivanov's counsel, and further that no logs covering the period in question were missing, lost or destroyed." 342 F. Supp. 940. This is a finding of fact by the district court and we will not disturb it. United States v. Delerme, supra.
Moreover, our own independent scrutiny of these logs permits us to be more specific in our findings concerning these exhibits. Preliminarily, we observe that this court may examine documents and exhibits which were before the district court and make our own independent determinations concerning them. See, e.g., Shiya v. National Committee of Gibran, 381 F.2d 602 (2d Cir. 1967), cert. denied, 389 U.S. 1048 (1968).
There is no dispute concerning the dating of the 4001-S logs. This set presents ten log sheets, one for each day from May 20 through May 29, 1963, all clearly dated. Also, there is only one log sheet for each day for each of the two surveillances. Because the log sheets for both surveillances were maintained by one agent, an entry on either log for the same date bears the same agent's initials. Of course, different agents were on duty at different times and on different dates.
With these facts as a basis, an examination of exhibits C-6-1 and C-6-2 reveals that appellant is correct in asserting that these two log sheets are for May 21 and May 22, respectively. Appellant introduced before the district court a full-page advertisement by NBC News in the May 21, 1963 issue of the New York Times, announcing that the documentary film "The Kremlin" would be shown on Channel 4 from 9:30 to 10:30 that night. A log entry on exhibit C-6-1 shows that a television program entitled "The Kremlin" was overheard by electronic surveillance at 9:55 p.m. on the date of the log. Also, appellant introduced a New York Times television schedule for May 26, 1963, showing that "The Kremlin" was not scheduled for viewing at any time on that date. Moreover, a comparison of the agent's initials on exhibits C-6-1 and C-6-2, the log sheets in controversy, with the initials on the 4001-S log sheets for May 21 and May 22, reveals that the initials and entries are identical. However, when compared with the agents' initials and entries on the 4001-S log sheets for May 26 and May 27, there is no similarity. It is clear that exhibits C-6-1 and C-6-2 are log sheets for May 21 and May 22, 1963, respectively.
From this, however, it does not follow that the 4002-S surveillance log sheets for May 26 and May 27 have been lost or destroyed. On the contrary, examination of exhibits C-8-1 and C-8-2 reveals that these sheets are the logs of surveillance 4002-S for May 26 and May 27, respectively. First, an examination of exhibit C-8-1, ostensibly dated "5/21/63", reveals that the date on the log sheet previously read "5/26/63". The "6" was cresed at some point and replaced with a "1", yet the "6" remains clearly visible underneath. Secondly, a comparison of the agents' entries and initials on exhibit C-8-1 with the 4001-S log for May 26, discloses that they are identical. Thus, exhibit C-8-1 is the log sheet of surveillance 4002-S for May 26, 1963.
Examination of exhibit C-8-2 reveals a similar change. This would appear to be the log sheet for "5/22/63". Upon closer examination, however, a "tail" can be seen to have been added to what was originally the "7" in "27" so as to make it a "2". Following this alteration, what was "5/27/63", became "5/22/63". Secondly, comparison of exhibit C-8-2 with the 4001-S log sheet for May 27 yields a complete identity of the agents' entries and initials. Yet, when exhibits C-8-1 and C-8-2 are compared with the 4001-S log sheets for May 21 and May 22, there is no similarity.
We have no basis for ascribing a sinister motive to the erasures and alterations.
Thus, we conclude (1) that exhibits C-6-1 and C-6-2 are the log sheets of surveillance 4002-S for May 21 and May 22, respectively, and (2) that exhibits C-8-1 and C-8-2 are the log sheets of surveillance 4002-S for May 26 and May 27, respectively.
Our findings in no way conflict with those of the district court. Rather, these findings make specific that which the district court left general, and, as such, make them more definite and sustainable.
We conclude, therefore, that as to the first set of logs the district court discharged its responsibility properly under the Supreme Court's mandate. Confronted with a government concession that these surveillances were illegal, it had but one responsibility: to determine whether "the conviction of [the] petitioner was not tainted by the use of evidence so obtained." The district court found no such taint from the first set of logs and we find no error in this determination.
The second set of logs forms the background of the major issue in this appeal: whether the government could properly utilize in a criminal prosecution the product of an electronic surveillance obtained in 1963 solely on the strength of the Attorney General's position as the representative of the President in gathering foreign intelligence information.
At the outset, it is important to emphasize what is not before us. We are not interpreting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, June 19, 1968, 82 Stat. 112, 18 U.S.C. § 2510 et seq. Both the government and appellant agree that the governing statute at the time of these interceptions was the Communications Act of 1934, 48 Stat. 1143; 47 U.S.C. § 605. Therefore, we are not called upon to consider the applicability of 18 U.S.C. § 2511(3).*fn6 Thus, we do not meet the issue reserved in United States v. United States District Court, 407 U.S. 297, 308 (1972): "Further, the instant case requires no judgment on the scope of the President's surveillance power [under Title III of the 1968 Act] with respect to the activities of foreign powers, within or without this country." Indeed, we are not required to define the parameters of the President's surveillance power under § 605. The limited nature of our inquiry is simply this: assuming a constitutional power of the President to have ordered surveillance of foreign agents in 1963, was it permissible for the government, under § 605 of the Communications Act of 1934, to utilize the products of such surveillance in a criminal prosecution?
That we so frame the question indicates that we avoid the invitation to plunge into an evaluation of Fourth Amendment considerations. We are mindful of Justice White's admonition "to [stop and] inquire whether the challenged interception was illegal under the statute" rather than proceed "directly to the constitutional issue without adverting to the time-honored rule that courts should abjure constitutional issues except where necessary to decision of the case before them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936) (concurring opinion)." United States v. United States District Court, supra, 407 U.S. at 340 (concurring opinion).
For our purposes we must accept the hypothesis suggested by appellant that "it must be assumed that the conversations of Ivanov overheard on the wiretaps led to evidence used at his criminal trial." For the issue of taint could not be resolved against Ivanov without an evidentiary hearing. Alderman v. United States, and Ivanov v. United States, supra, 394 U.S. 165; Kolod v. United States, 390 U.S. 136 (1968). Thus, we must assume "in the present posture of this case," as we did in In Re Grand Jury Proceedings, Appeal of Sister Egan, 450 F.2d 199 (3d Cir. 1971), and as the Supreme Court did in Gelbard v. United States, and United States v. Egan, 408 U.S. 41 (1972), that the government intercepted communications and utilized them in the proceedings against the appellant.
We are not without guidance in approaching this issue. The Supreme Court has ruled forcefully, specifically and in clear language free from any ambiguity, that § 605 was a complete and total bar to the admissibility of wiretap information obtained by federal agents in a smuggling prosecution. Interpreting the statutory language, "... no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person," the Court said:
Taken at face value the phrase "no person" comprehends federal agents, and the ban on communication to "any person" bars testimony to the content of an intercepted message.
In the second Nardone case, 308 U.S. 338 (1939), the Court held that the statutory prohibition barred the evidentiary use of the fruits of the intercepted conversations, as well as the conversations themselves. The Supreme Court continued the absolutism of its pronouncements in review of a conviction for unlawful possession of alcoholic spirits in Benanti v. United States, 355 U.S. 96, 100 (1957):
The Nardone decision laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. ( Emphasis supplied.)
It is the government's contention that the President, acting through the Attorney General, may constitutionally authorize the use of electronic surveillance to obtain foreign intelligence information deemed essential to the security of the United States.*fn7 The government properly observes that Article II vests the President, as Chief Executive, with responsibility for the conduct of the nation's foreign affairs.
The district court accepted this contention, and solely for the purpose of our analysis, we shall assume that the district court did not err in this respect. However, accepting this contention does not put the matter to rest. The issue central to this case is not the constitutional power of the President to conduct such surveillances, but it is the less sophisticated question of admissibility of evidence in a criminal prosecution.
A review of the authorities relied upon by the government indicates that these cases failed to make the important distinction between the congressional power to forbid the disclosure of interceptions and the President's constitutional power to make interceptions.
It is beyond question that the President, as Chief Executive, possesses certain powers and responsibilities which are not dependent upon a specific legislative grant from Congress, but derive from the Constitution itself.*fn8 This principle was announced as ...