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United States v. Butenko

decided: March 5, 1974.

UNITED STATES OF AMERICA
v.
JOHN WILLIAM BUTENKO AND IGOR A. IVANOV, IGOR A. IVANOV, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Seitz Chief Judge, concurring and dissenting. Aldisert, Circuit Judge, concurring and dissenting. Gibbons, Circuit Judge, dissenting in part.

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

Among the more perplexing dilemmas faced by a democratic society is that of securing its territorial and institutional integrity, while at the same time, preserving intact the core of liberties essential to its existence as an association of truly free individuals.

The disposition of this appeal, which requires us to consider the relationship between the federal government's need to accumulate information concerning activities within the United States of foreign powers and the people's right of privacy as embodied in statute and the Fourth Amendment, represents, in effect, part of the federal judiciary's attempt to strike a proper balance between these two compelling, albeit not easily reconciled, interests.

The present appeal is the most recent episode in this provocative and protracted litigation.*fn1 At a trial concluded on December 2, 1964, appellant Igor A. Ivanov, a Soviet national, and John Butenko, an American by birth, were convicted of conspiring to violate the provisions of 18 U.S.C. § 794(a) and (c) and 18 U.S.C. § 951. These statutes, in essence, prohibit the transmission or communication to a foreign government of material or information relating to the national defense, and forbid a person from acting as a foreign agent absent prior notification to the Secretary of State. In a previous appeal, Ivanov and Butenko contended that the evidence offered by the government, which tended to implicate them in an attempt to purloin highly sensitive information concerning the Strategic Air Command, was insufficient to support the averments in the indictments and, hence, their convictions could not stand. This Court agreed with Ivanov's contention with respect to his conviction for violating § 951, but otherwise affirmed the judgment of the district court.*fn1a

Ivanov and Butenko then sought certiorari in the Supreme Court. While their petitions were pending, the government voluntarily revealed that it had overheard, by means of electronic surveillance, conversations of Ivanov and of Butenko. The Supreme Court thereupon granted certiorari, limited to questions of standing and the government's obligation to disclose the records of wiretaps determined to be illegal. In addition, the Court consolidated appeals of Ivanov and Butenko with another case involving similar issues.*fn2 After oral argument, the Supreme Court held that records of illegal surveillance must be disclosed to Ivanov and Butenko, and remanded the cases 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 conversation which may have been overheard through that surveillance.*fn3

On remand, the district court was presented with requests for disclosure of the records of two sets of interceptions. Pursuant to the Supreme Court's directive, the district court, after conducting a hearing, found that information contained in the first set of interceptions, conceded to be illegal by the government, had not tainted the convictions of Ivanov or Butenko.*fn4 After examining the records of a second set of interceptions in camera, the district court held that the electronic surveillance producing these records did not violate § 605 nor contravene the Fourth Amendment.*fn5 The district court, therefore, refused to order the government to disclose to Ivanov and his counsel the records of the second set of interceptions or to conduct further proceedings with respect thereto.*fn6 Accordingly, the district court directed that new judgments of conviction be entered.

Ivanov challenged the new judgment of conviction as to him. He asserted that the loss or destruction of some of the records dealing with the first set of interceptions prevented the government from sustaining its burden of demonstrating that his conviction was not tainted by these interceptions and may have deprived him of exculpatory evidence. Additionally, Ivanov contended that the district court erred in failing to require disclosure to him and his counsel of the records of the second set of interceptions, which he claimed violated § 605 of the Communications Act of 1934, or, if the Court found them to be permissible under § 605, his Fourth Amendment rights.

A panel of this Court, in an opinion filed June 21, 1973, unanimously declined to reverse the district court's finding of no taint as to the first set of interceptions. However, the panel concluded, by a 2-1 vote, that the second set of interceptions fell within the parameters of § 605 and that, therefore, the divulgence of the contents of that set of taps, for the purpose of trial, was illegal. Consequently, the panel remanded to the district court for disclosure to Ivanov and his counsel of the records of the second set of interceptions and for an evidentiary hearing to determine whether they tainted his conviction.

The government petitioned the Court in banc for a rehearing of that portion of the panel's decision ordering disclosure and an evidentiary hearing dealing with the second set of surveillances. Ivanov filed a petition for rehearing, conditioned on the government's obtaining rehearing, contending that the panel was incorrect in concluding that the government had produced all the records previously ordered disclosed relating to the first set of interceptions. The full Court granted the government's petition for rehearing, but denied that of Ivanov.

Thus, the principal question before the Court in banc is whether it is sufficient that the records of the second set of interceptions be disclosed to the district court in camera, or whether the government must also disclose to Ivanov and his counsel the records of this set of interceptions.

I. THE DISCLOSURE REQUIREMENT

In Alderman v. United States,*fn7 the Supreme Court held that the government must disclose to Ivanov and the other defendants all records of illegal surveillances, without a prior in camera review by the trial judge, for the purpose of determining if the records contain material relevant to the government's case. The Supreme Court concluded that once the interceptions are ascertained to be illegal, "the task [of determining taint] is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the government's case."*fn8

The Supreme Court made clear in Taglianetti v. United States*fn9 that the necessity of disclosure, in cases not involving illegal surveillance, depended upon the likelihood that accurate determinations of the particular factual or legal issues in dispute were otherwise unobtainable. "Nothing in [Alderman, Ivanov, and Butenko] . . . . requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance."*fn10 (Emphasis added) Apart from ascertaining whether evidence derived from illegal surveillances tainted a conviction, it remains within the trial judge's discretion to require or not to require disclosure of records of surveillances to facilitate resolution of questions surrounding electronic surveillance.*fn11

Thus, if we are to require disclosure of the records of the second set of interceptions, we must conclude either (1) that the electronic surveillances producing such records were illegal or (2) that the trial judge abused his discretion in refusing disclosure.

In dealing with the former considerations--assessing the legality of the government's activities with regard to the second group of surveillances, we must first decide whether § 605 prohibits the surveillances at issue. If we should decided that the prohibitions of § 605 do not cover these surveillances we must then proceed to determine whether Ivanov's Fourth Amendment rights have been transgressed.*fn12 Lastly, if we should hold that this set of surveillances were not illegal, we must, in accordance with the instructions of the Supreme Court, evaluate the trial judge's exercise of discretion in refusing disclosure.

We shall address these three issues seriatim.

II. SECTION 605 OF THE COMMUNICATIONS ACT OF 1934 DOES NOT PROHIBIT THE INTERCEPTION AND DIVULGENCE OF THE CONTENTS OF ELECTRONIC SURVEILLANCE IN THE FOREIGN AFFAIRS FIELD MADE PURSUANT TO EXECUTIVE ORDER.

Section 605 of the Communications Act provides in relevant part that "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."*fn13

This section prompted considerable discussion as electronic surveillance became a more sophisticated and widely-used device for the investigation of criminal activity. Much of the clamor for reform centered around the scope given to the section by the Nardone cases.*fn14 Petitioners in those cases were tried and convicted of smuggling alcohol. Over their objection, federal agents were permitted to testify to the substance of petitioners' telephone conversations that were wiretapped and overheard by the witnesses. In Nardone I, the Supreme Court held that, under § 605, "'no person' comprehends federal agents, and the bar on communication to 'any person' bars testimony to the content of an intercepted message."*fn15 On re-trial, the prosecution attempted to present evidence gathered as a result of the illegal taps instead of testimony as to the actual contents of the overheard conversations. The Court, in Nardone II, made clear that the "fruits" of the taps, as well as the intercepted materials themselves, were inadmissible.

In response to the ostensible debilitating threat to federal investigatory activities presented by the interpretation placed on § 605 by the Nardone cases, the Department of Justice adopted the position "that the mere interception of telephone communications is not prohibited by federal law."*fn16 The government, therefore, continued to wiretap after the Nardone cases even though aware that those cases, at least when the surveillances were conducted during the course of an investigation of domestic criminal activity, precluded the introduction of the records or fruits thereof into evidence. Meanwhile, the Department of Justice pressed for legislation lifting the evidentiary limitations erected on the foundation of § 605 by the Nardone cases. It did so on the obvious ground that the ability to use electronic surveillance to secure evidence in criminal convictions would make surveillance a more effective weapon against crime. The Department's efforts were finally successful with the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, which specifically authorizes any electronic surveillance with prior judicial authorization.*fn17 To contend, as Judge Aldisert does, that these efforts by various Attorneys General, constituted a concession that § 605 proscribed the introduction into evidence of material seized as a result of such surveillance does not seem realistic.*fn17a The Attorneys General were advocating new legislation narrowing the potential ambit of § 605 and, in that context, suggesting that § 605 might be broad enough to reach situations like that presented in this case, no doubt represented sound strategy. In addition, the Supreme Court, in the Nardone cases, was dealing with the warrantless electronic surveillance of suspected domestic criminals during routine investigations by federal agents. In the present case, we are faced with the significantly different situation of warrantless electronic surveillance pursuant to presidential directive in the sensitive area of foreign intelligence information gathering. It, therefore, would not seem appropriate to regard those cases as controlling here. Only one court of appeals has been faced with circumstances similar to those here and it dealt with the issue obliquely, if at all.*fn18 The Executive Branch's continuing assertion of the power to wiretap per se and the conclusion that the use of intercepted material as evidence was prohibited by § 605*fn19 and, thus, that the provision had an incidental effect not unlike a rule of evidence, does not, as Judge Aldisert urges, inexorably lead to the proposition that the statutory proscription against divulgence represented an evidentiary rule.*fn20 The legislative history relating to § 605 is bereft of any suggestion that Congress intended to fashion a rule of evidence. On the contrary, the language of the statute seems to reach any divulgence, by the way of introduction into evidence or otherwise, of information obtained by way of wiretaps that would compromise the privacy of those whose conversations are overheard. Furthermore, the fact that the restrictions contained in § 605 have been enforced through the exclusion of evidence at a criminal trial should not obscure the broader aim of the statute--the discouragement of the interception of communications.*fn21

Thus, in our view, and apparently that of Judge Gibbons, § 605 would appear to prohibit divulgence of intercepted communications obtained by electronic surveillances that are deemed within the parameters of the provision. Moreover, restricting any divulgence to members of the Executive Branch does not necessarily mean that the surveillance and such divulgence does not run afoul of § 605.*fn22 The proscriptions of § 605 are directed to surveillances generally, and the conjunction, "and," separating "interception" and "divulgence," does not seem intended to invite separate analysis. There is absolutely no indication that Congress contemplated situations where interceptions were unaccompanied by divulgences.

However, the conclusion that § 605 extends to all divulgences to any person of any surveillances within the provision's ambit does not exhaust our inquiry into the lawfulness of the wiretaps in the case at hand. We still must determine whether § 605 reaches the type of surveillances producing the records that the district judge has refused to order disclosed to Ivanov and his counsel. Specifically, the question left unanswered is whether § 605 is to be construed to restrict the President's authority to gather foreign intelligence information and use such information to assist in securing criminal convictions.*fn23

Keeping in mind that § 605 embodies a limitation on the power to engage in surveillance generally, we begin our analysis of the remaining question under the statute with the proposition that the President is charged with the duties to act as Commander-in-Chief of the Armed Forces*fn24 and to administer the nation's foreign affairs,*fn25 powers that will receive fuller treatment in subsequent portions of this opinion.*fn26 To fulfill these responsibilities, the President must exercise an informed judgment. Decisions affecting the United States' relationships with other sovereign states are more likely to advance our national interests if the President is apprised of the intentions, capabilities and possible responses of other countries. Certainly one means of acquiring information of this sort is through electronic surveillance. And electronic surveillance may well be a competent tool for impeding the flow of sensitive information from the United States to other nations.

In enacting § 605, the Congress did not address the statute's possible bearing on the President's constitutional duties as Commander-in-Chief and as administrator of the nation's foreign affairs. The Senate and House reports suggest that the purpose of the Communications Act was to create a commission with regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable or radio.*fn27 There appears to have been little or no discussion at all in Congress regarding § 605. Indeed, had Congress explored the question, it no doubt would have recognized, as Judge Gibbons' extensive discussion may well indicate, that any action by it that arguably would hamper--since as we have previously concluded § 605 is intended to prohibit surveillances generally--the President's effective performance of his duties in the foreign affairs field would have raised constitutional questions. We do not intimate, at this time, any view whatsoever as to the proper resolution of the possible clash of the constitutional powers of the President and Congress. Instead, we merely note that the absence of legislative consideration of the issue does suggest that Congress may not have intended § 605 to reach the situation presented in the present case. In the absence of any indication that the legislators considered the possible effect of § 605 in the foreign affairs field, we should not lightly ascribe to Congress an intent that § 605 should reach electronic surveillance conducted by the President in furtherance of his foreign affairs responsibilities. This would seem to be far too important a subject to justify resort to unsupported assumptions.

The Attorney General has certified, Ivanov does not deny, and the district court has found that the surveillances at issue here "were conducted and maintained solely for the purpose of gathering foreign intelligence information."*fn28 Therefore, § 605 does not render them, in and of themselves, accompanied by subsequent disclosure, unlawful.

Although decisions subsequent to United States v. Coplon*fn29 hold that § 605 does not limit the President's powers to gather foreign intelligence information,*fn30 we are aware that Coplon may be read to undercut the position urged here as well as in the other cases subsequent to Coplon. We do not, however, despite our high regard for the late Judge Learned Hand, give to that case the conclusive reading suggested by Judge Gibbons. There, the court did not consider in any detail whether wiretaps for the purpose of gathering foreign intelligence information fell within the ambit of § 605. A close reading of the briefs in Coplon indicates that the question was not raised. Instead, the court merely assumed that the surveillance and disclosure together were illegal under § 605.*fn31 In the absence of any reasoning undergirding this assumption, we do not consider it is entitled to any great precedential effect and decline to adopt it here.

III. IVANOV'S FOURTH AMENDMENT RIGHTS WERE NOT INFRINGED.

Because of our conclusion that § 605 of the Communications Act neither prohibits the President from gathering foreign intelligence information nor limits the use to which material so obtained may be put, it becomes necessary to determine whether the surveillances producing the second set of records invaded Ivanov's Fourth Amendment rights. If the surveillances did violate Ivanov's constitutional rights, then disclosure of the records and a suppression hearing may be required under the mandate of the Supreme Court.*fn32

1. The Applicability of the Fourth Amendment to Electronic Surveillances Conducted Pursuant to the President's Foreign Affairs Powers.

The expansive language of United States v. Curtiss-Wright Export Corporation*fn33 provides support for the contention that the President is authorized to act unencumbered by the Fourth Amendment requirements of prior judicial approval and probable cause when he is dealing with national security matters.*fn34 The ramifications of Curtiss-Wright, however, remain somewhat enigmatic in this regard. To contend that customary Fourth Amendment analysis is to be abandoned whenever the President asserts that a particular search and seizure is incident to the conduct of foreign affairs activities is arguably uncongenial with a reasoned view of the relationship among the relevant constitutional provisions and the thrust of the Supreme Court decision in United States v. United States District Court.*fn35 We take no such position here.

The President in his constitutionally designated role as Chief Executive*fn36 is charged with the duty to see that the laws of the United States are enforced and obeyed. Yet it is incontrovertible that the President, through his subordinates, cannot ignore the admonitions of the Fourth Amendment when investigating criminal activity unrelated to foreign affairs. Thus, evidence seized in the investigation of domestic crimes as a result of actions outside the bounds of the Amendment would not be admissible in a criminal prosecution.*fn36a The President's authority to conduct foreign affairs similarly is implied, at least in part, from the language contained in Article II of the Constitution.*fn37 The Constitution contains no express provision authorizing the President to conduct surveillance, but it would appear that such power is similarly implied from his duty to conduct the nation's foreign affairs. Although direct threats to the existence of governmental institutions or to territorial integrity are of immeasurable gravity, there would seem to be nothing in the language of the Constitution to justify completely removing the Fourth Amendment's requirements in the foreign affairs field and, concurrently, imposing those requirements in all other situations.

In United States District Court, the Supreme Court refused to forego traditional Fourth Amendment analysis despite the government's claim that a warrantless surveillance of a domestic organization believed by the Executive to represent a threat to national security did not overstep the bounds of the Fourth Amendment. The Court implicitly rejected the contention that the existence of the Executive's belief that national security was involved somehow rendered the requirements of the Fourth Amendment inoperative. It went on to hold that the government must secure a warrant before conducting the type of surveillances at issue therein.*fn38

Thus, we conclude, as Judge Gibbons does, that the Fourth Amendment is also applicable where, as here, the President is acting pursuant to his foreign affairs duties even though the object of the surveillance is not a domestic political organization. Our differences with Judge Gibbons' opinion center primarily on the necessity for prior judicial authorization under the circumstances of this case.

2. The Provisions of the Fourth Amendment.

Assuming then that the Fourth Amendment is applicable,*fn39 we must now examine the requirements of that provision. The Fourth Amendment provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The two substantive clauses of the amendment possess independent significance. First, all searches and seizures, even if authorized by warrant, must be reasonable.*fn40 At a minimum, this means that some form of probable cause for the search and seizure must exist. Second, even a reasonable search may be unlawful if the official fails to secure a warrant. "We cannot . . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative."*fn41

Here a search warrant was not secured prior to the surveillances. We must therefore, determine whether this fact, in and of itself, renders the wiretaps repugnant to the Fourth Amendment. Since, as will be shown, we are unable to conclude that the absence of a search warrant under these circumstances is fatal, we must then otherwise evaluate the reasonableness of the infringement of Ivanov's privacy.

a. The Warrant Requirement.

The exceptions to the warrant requirement represent cautious responses on the part of the Supreme Court to specific and exigent factual situations. Thus, an automobile may be searched without a warrant to prevent the transfer of contraband to another locality when there is insufficient opportunity to obtain a warrant.*fn42 An officer may search a person without a warrant incident to a lawful arrest or when he has probable cause to arrest in order to avert possible destruction of evidence or when there is a possibility of an attempt to use a concealed weapon to injure the officer or facilitate escape.*fn43 In other circumstances, even though probable cause to arrest may not exist, an officer may "frisk" a person he has properly detained for questioning if he believes that the person may be armed and dangerous.*fn44

The Court has also narrowed the ambit of the Fourth Amendment warrant requirement where the intrusion is a "home visit" by a welfare worker.*fn45 Several considerations--the rehabilitative aspects of the visit, the noncriminal nature of the investigation, and the strong state interest in having an efficient administrative procedure whose object is to promote the welfare of the children of assistance recipients--combined to lead to the conclusion that the warrantless intrusion if viewed as a search, is not subject to the warrant requirement.*fn45a

While we acknowledge that requiring prior approval of electronic surveillance in cases like the present one might have some salutary effects--a judge, for example, could assure that the Executive was not using the cloak of foreign intelligence information gathering to engage in indiscriminate surveillance of domestic political organizations*fn46 --on balance, the better course is to rely, at least in the first instance, on the good faith of the Executive and the sanctions for illegal surveillances incident to post-search criminal or civil litigation. One of the elements that prompted the Supreme Court to dispense with the warrant requirement in the "home visit" situation was the strong public interest involved. In the present case, too, a strong public interest exists: the efficient operation of the Executive's foreign policy-making apparatus depends on a continuous flow of information.*fn47 A court should be wary of interfering with this flow.

It would be unfortunate indeed if, as Judge Gibbons seems to suggest, the President must act illegally to perform his constitutional duties. Yet, if the President must act secretly and quickly to investigate an attempt by a foreign agent to obtain important intelligence information, such a result may follow under Judge Gibbons' analysis. Also, foreign intelligence gathering is a clandestine and highly unstructured activity, and the need for electronic surveillance often cannot be anticipated in advance. Certainly occasions arise when officers, acting under the President's authority, are seeking foreign intelligence information, where exigent circumstances would excuse a warrant. To demand that such officers be so sensitive to the nuances of complex situations that they must interrupt their activities and rush to the nearest available magistrate to seek a warrant would seriously fetter the Executive in the performance of his foreign affairs duties.

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."

b. The probable cause requirement

Although, as we have held, a warrant prior to search is not an absolute prerequisite in the foreign intelligence field when the President has authorized surveillance, a judge will be called upon, in some instances, to ascertain the legality of a warrantless search already conducted.*fn48 The opportunity for post-search judicial review represents an important safeguard of Fourth Amendment rights and should deter abuse that might be caused by the necessary relaxation of the warrant requirement.

The foundation of any determination of reasonableness, the crucial test of legality under the Fourth Amendment, is the probable cause standard.*fn49 Although most often formulated in terms of an officer's probable cause to believe that criminal activity has or will take place, the standard may be modified when the government interest compels an intrusion based on something other than a reasonable belief of criminal activity, especially when the scope of the intrusion is limited.*fn50

The government interest here--to acquire the information necessary to exercise an informed judgment in foreign affairs--is surely weighty. Moreover, conceivably officers undertake certain electronic surveillance with no suspicion that a criminal activity may be discovered. Thus, a demand that they show that before engaging in such surveillance they had a reasonable belief that criminal activity would be unearthed would be to ignore the overriding object of the intrusions. Since the primary purpose of these searches is to secure foreign intelligence information, a judge, when reviewing a particular search must, above all, be assured that this was in fact its primary purpose and that the accumulation of evidence of criminal activity was incidental. If the court, for example, finds that members of a domestic political organization were the subjects of wiretaps or that the agents were looking for evidence of criminal conduct unrelated to the foreign affairs needs of a President, then he would undoubtedly hold the surveillances to be illegal and take appropriate measures.

Since, we reiterate, the district court has found that the second set of interceptions of conversations of Ivanov were "solely for the purpose of gathering foreign intelligence information," they are reasonable under the Fourth Amendment. Because we have already concluded that a warrant was not required under the circumstances here, we, therefore, hold that Ivanov's Fourth Amendment rights were not violated.*fn51

IV. IN CAMERA EXAMINATION

The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillances to be legal. If the surveillances had been found illegal, Alderman, of course, would have required disclosure of these records to Ivanov prior to an adversary hearing on the issue of taint. However, since the question confronting the district court as to the second set of interceptions was the legality of the taps, not the existence of tainted evidence, it was within his discretion to grant or to deny Ivanov's request for disclosure and a hearing. The exercise of this discretion is to be guided by an evaluation of the complexity of the factors to be considered by the court and by the likelihood that adversary presentation would substantially promote a more accurate decision.*fn52

As stated, Ivanov does not challenge the finding of the district court that the "surveillances were conducted and maintained solely for the purpose of gathering foreign intelligence information." Nor does he contend that he was the object of surveillance because of domestic political activity or because of conduct unrelated to his own espionage concerns. Under these facts, we fail to see how disclosure of the records of the wiretaps and an evidentiary hearing would serve to shed further light on either the legal question involved in this appeal--whether the President has authority to conduct warrantless surveillances in the foreign affairs field--or its factual underpinnings--whether the surveillances at issue were, in fact, conducted pursuant to the President's foreign affairs authority.

Moreover, the nature of information contained in these records with respect to the relations of this nation with foreign powers counsels court-ordered disclosure only in the most compelling situations. Thus, we hold that the district court's failure to order disclosure of the records of the second set of interceptions or to hold a hearing regarding them did not constitute an abuse of discretion.

V. CONCLUSION.

The present case raises issues concerning a clash of interests of highest concern to the vitality of this nation. As is typical under our system of government, the conundrum implicit in the controversy has been brought to the judiciary for authoritative resolution. Ivanov contends that the Communications Act should be construed to bar such surveillance and the use of material obtained thereby and that without prior judicial authorization the President and his counselors may not constitutionally intercept his telephone communications. The government asserts that the Communications Act should not be so construed and, with respect to the constitutional question, maintains that there is Presidential power to engage in warrantless surveillance to gather foreign intelligence information.

Principled adjudication of this knotty matter cannot properly be achieved by a doctrinaire preference for one interest or the other. Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.

Rarely, if ever, do the phrases of the Constitution themselves decide cases without at least some interpretative assistance from the judiciary. The Constitution speaks through the judges, but its phrases are seldom so cabined as to exclude all flexibility. Charged with the assignment to make a choice, a judge must be responsible for the choice he makes.

The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.

To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and, to that extent, their privacy infringed. But the Fourth Amendment proscribes only "unreasonable" searches and seizures.*fn52a

And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.*fn53

Accordingly, the judgment of the district court denying Ivanov's request for disclosure and an evidentiary hearing will be affirmed.

SEITZ, Chief Judge, concurring and dissenting.

I concur in affirming the district court's disposition of questions respecting the first, concededly illegal, set of surveillances. My views in this matter are well stated in Part II of Judge Aldisert's opinion.

As to the second set of surveillances, the majority has found that these wiretaps and their use to procure evidence introduced against Ivanov, assuming such use was made of them, violated neither § 605 of the Communications Act nor the Fourth Amendment. Finding the wiretaps legal, the majority has held that the district court properly refused to order disclosure to Ivanov of the logs summarizing these surveillances and that the court below also properly refused to hold an evidentiary hearing on the issue of taint. Because I believe that these matters are settled by Supreme Court decisions and that the majority in effect is "overruling" Supreme Court decisions, sub silentio, I dissent from the majority's affirmance of district court action respecting the second set of surveillances.

I. § 605 OF THE COMMUNICATIONS ACT

As I read the majority opinion, two conclusions support its decision that § 605 of the Communications Act has not been violated here. First, in logical order, because wiretapping is "one means of acquiring information" that may make the President's decisions regarding foreign affairs "more likely to advance our national interests," the majority presumes that Congress did not limit the President's ability to wiretap to obtain foreign intelligence information when it adopted § 605 without explicit discussion of this use of wiretaps. Second, the majority declares that "there is absolutely no indication that Congress contemplated situations where interceptions were unaccompanied by divulgences" and reasons that since Congress presumably did not intend to limit the President's use of wiretaps to stay informed regarding foreign affairs, § 605 is not violated by use of wiretap-derived evidence to secure espionage convictions. These conclusions, relied on for the majority's holding that § 605 has not been breached, do not follow from their premises and contradict Supreme Court precedent as well as the terms of § 605.

Initially, I think that insufficient attention has been paid to the section itself. Section 605 of the Communications Act, 47 U.S.C. § 605 (1970), contains four distinct prohibitions. The first prohibition is directed at employees of communications facilities and is not relevant here. Cf. Nardone v. United States, 302 U.S. 379, 381, 82 L. Ed. 314, 58 S. Ct. 275 (1937). The prohibition contained in the third clause of § 605 concerns unauthorized reception of communications; the second and fourth prohibitions concern interception. The Act does not define reception and interception, but, attributing to the drafters a desire that each statutory statement be meaningful and not merely repetitive, I would distinguish these terms by the point in time at which the unauthorized participant acquires access to a communication; reception would occur following transmission, while interception would occur during transmission to and preceding reception of the communication by someone other than the interceptor. The third clause of § 605, therefore, also is inapplicable here.

§ 605: Clause 2, Element (1)

If the government has violated § 605, then, it must be by virtue of the section's second or fourth prohibition. The second part of § 605 forbids (1) any person not authorized by the sender (2) to intercept and (3) divulge or publish the communication's contents, meaning or existence (4) to any person.*fn1 This portion of § 605 was construed by the Supreme Court in Nardone v. United States, supra, which involved in-court testimony by federal agents as to the contents of communications intercepted by government wiretaps. The argument advanced by the government in Nardone bears a striking resemblance to the first argument accepted by the majority here. The government contended that the executive branch was charged to take care that the laws of the United States be faithfully executed, that Congress at the time it passed the Communications Act was aware of the government's use of wiretap evidence to faithfully execute federal criminal laws, that Congress did not mention this use of wiretaps in considering § 605 of the Communications Act, and that, therefore, Congress must be presumed to have excluded federal agents, acting in furtherance of their duty to enforce criminal laws, from those persons covered by § 605. Id. at 381-83.

The Court in Nardone observed that not only was there no discussion in adoption of § 605 of the use federal agents made of wiretaps, but there was no record of any legislative discussion concerning adoption of § 605. The Court further noted that several bills designed explicitly to prohibit government wiretapping had failed shortly before passage of the Communications Act. These circumstances, however, were insufficient to overcome "the fact that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that ' no person ' shall divulge or publish the message or its substance to ' any person. '" Id. at 382 [emphasis in original]. In explaining its refusal in the absence of legislative history to speculate that Congress intended to exclude federal agents from the strictures of § 605, the Court added:

It is urged that a construction be given the section which would exclude federal agents since it is improbable that Congress intended to hamper and impede the activities of the government in the detection and punishment of crime. The answer is that . . . . Congress may have thought it less important that some offenders go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.

Id. at 383.

I am unable to see any difference between the argument rejected by the Supreme Court in Nardone and that accepted by the majority here. Both argue that the plain all-inclusive language of the statute covering any person should be construed not to apply to federal officers performing tasks assigned by the Constitution to the executive branch. Both rely on the absence of legislative history, and both would require explicit legislative consideration of a limitation on the executive's freedom of action before a statute could be read to restrict it. The canons of statutory construction considered by the Supreme Court in Nardone, id. at 383, apply with equal force in both cases.

There is of course a distinction between this case and Nardone. The case before us, as cast by the majority, involves Presidential powers over foreign affairs, while Nardone concerned executive authority over domestic matters. This distinction, however, makes no legal difference. The only constitutional provision cited by the majority as authority for the executive decision-making that "foreign intelligence information" supposedly aids is Article II, section 2's declaration that "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ." This provision certainly cannot be said to be any more important than Article II, section 3's charge that the President "take care that the Laws be faithfully executed," nor can wiretapping be deemed any more crucial to accomplishment of the President's duties as Commander-in-Chief than to his faithful execution of the laws.

The majority, however, apparently attaches significance to the fact that the President has powers over foreign affairs that are not made express in the Constitution. The majority's principal authority as to this point is United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 81 L. Ed. 255, 57 S. Ct. 216 (1936), decided one year before Nardone. Curtiss-Wright stated that the federal government possessed certain powers over foreign affairs inherent in national sovereignty. Id. at 318. In upholding a statute permitting the President to make certain decisions bearing on foreign affairs against a charge of unconstitutional delegation of legislative power, the Court observed that power over foreign affairs was not legislative alone. Id. at 319-22. While rejecting the statement in Curtis-Wright that certain foreign affairs powers inhere in national sovereignty, constitutional considerations aside, (see note 37 of the majority opinion), the majority here relies on Curtiss-Wright for the proposition that foreign affairs powers may be implied in the Constitution even if federal powers over domestic affairs must be express. Yet, the majority never explains why this nebulous federal implied power, even assuming that it is addressed solely to the executive, is entitled to greater deference than an express power of the executive such as Nardone involved.

Perhaps the majority has concluded that Congress could not limit the President's power to wiretap in order to obtain foreign intelligence information.*fn2 Without explicitly stating this conclusion, the majority indicates that "any action by [Congress] that arguably would hamper . . . . the President's effective performance of his duties in the foreign affairs field would have raised constitutional questions." The majority does not cite any precedent supporting this statement, nor does it state what questions would be raised. As I read Articles I and II of the Constitution, the Congress as well as the President has powers in foreign affairs. Congress is empowered to regulate commerce with foreign nations, to define and punish crimes committed on the high seas and offenses against the law of nations, to declare war, to raise and support armies, provide and maintain a navy, to provide for calling forth the militia to repel invasions, and to make rules for governing the armed forces. The President's powers in the foreign affairs area, independent of legislative delegations, are far more limited: he is Commander-in-Chief of the armed forces and receives public ministers; he can make treaties, with the Senate's concurrence, and appoint ambassadors, again with Senate approval.

The President is certainly no "Lone Ranger" in the foreign affairs field, possessed, as the majority intimates, of vast constitutional powers to be exercised independently of Congress. All of the federal government's powers, including foreign affairs powers, are subject to constitutional limitations, United States v. Curtiss-Wright Export Corp., supra at 320, and one such limitation on the President's power is the exercise of Congressional power. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Jackson, J., concurring) [footnote omitted].

I cannot conceive of any power in the foreign affairs field that the President exercises exclusively and for which wiretapping is essential; I cannot perceive any legal basis for intimating that Congress could not constitutionally limit the President's power to wiretap to obtain "foreign intelligence information." Apparently, Judge Learned Hand was of the same view, as were the judges concurring in his opinion in United States v. Coplon, 185 F.2d 629 (2d Cir. 1950). Coplon was, like this case, an espionage case involving the possible use of wiretap fruits. As the majority notes, Judge Hand engaged in no lengthy discussion to distinguish foreign intelligence wiretaps from others. It is safe to assume that Judge Hand knew that "foreign intelligence" was probably sought in wiretapping that led to an espionage charge. One may also assume that the government did not argue that Congressional limitation of foreign affairs wiretapping was constitutionally different from limitation of other government wiretapping--indeed, the government has not raised the argument in this case. Instead of inquiring into the constitutionality of the law, which, if he had doubted the Act's constitutionality, he would have been required to do, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-80, 2 L. Ed. 60 (1803), Judge Hand declared that the validity of the Coplon wiretap was covered by the ruling in Nardone. United States v. Coplon, supra at 636.

Like Judge Hand, I can see no basis for distinguishing Coplon from Nardone, nor can I distinguish this case from those. Thus, perceiving no difference between this case and Nardone, I would find that the federal agents involved here fall within the category of persons described in the first element of § 605's second clause.

§ 605: Clause 2, Elements (3) & (4)

The government does not dispute that it falls within the second element of § 605's second prohibition; federal agents did intercept communications involving Ivanov. The government contends, however, that federal agents did not divulge the communication's contents to any other person, the third and fourth elements required for violation of § 605, clause two. Of course the agents who made the interception divulged the "existence, contents, substance, purport, effect, or meaning" of the intercepted communication to other agents. Perhaps, as Judge Aldisert implies, such divulgence does not violate § 605 because the federal officers are really acting as agents of the executive in making the interception and the relevant "person" to be viewed as interceptor is, thus, the executive; divulgence to other agents of the executive, who receive the information in such capacity, hence would not violate the statute because the "divulgees" would be part of the same "person" as the "divulgors." Cf. 47 U.S.C. § 153(i) (1970) (defining "person" to include, as well as individuals, partnerships, associations, trusts and corporations).

I do not think that question needs to be resolved here. Ivanov argues that the relevant divulgence occurred at trial when the government introduced evidence obtained by use of the wiretaps. The Supreme Court's first Nardone decision held that the government could not introduce testimony on the content of wiretaps. The second Nardone decision, Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266 (1939), held that the fruits of the interception also could not be introduced. Id. at 340-41. Assuming that the Court was again dealing with the second prohibition contained in § 605, I would read Nardone II as holding that the use of a wiretap's fruits in court constituted a divulgence prohibited by § 605.

§ 605: Clause 4

While the precise ground for the Nardone II decision is not clear to me, the illegality of any derivative evidentiary use of wiretaps is. This illegality becomes more apparent on examination of the final prohibition contained in § 605. The section's last clause forbids (1) any person who has received or become aware of the existence, meaning or contents of a communication (2) intercepted without the sender's authorization (3) from divulging, publishing or using such information (4) for his own benefit or the benefit of another unauthorized person.*fn3 This clause expressly prohibits the use of wiretap information.

The only remarks Supreme Court justices have made referring expressly to this clause are contained in the dissent to Goldstein v. United States, 316 U.S. 114, 86 L. Ed. 1312, 62 S. Ct. 1000 (1942). The majority in Goldstein decided that defendants who were not parties to the communication lacked standing to object to introduction of wiretap fruits against them. Id. at 121-22. In dissent, Justice Murphy, joined by Chief Justice Stone, who voted with the majorities in Nardone I and II, and Justice Frankfurter, who authored Nardone II, disagreed with the Court on standing and thus reached the merits. The dissenters found this fourth part of § 605 to be "unequivocal and controlling." 316 U.S. at 125-26. "In enacting § 605, Congress sought to protect society at large against the evils of wiretapping and kindred unauthorized intrusions into private intercourse conducted by means of the modern media of communication, telephone, telegraph, and radio. To that end the statute prohibits not only the interception and the divulgence of private messages without the consent of the sender, but also the use of information so acquired by any person not entitled to it." Id. at 125. I would, therefore, find that § 605 prohibits use of wiretap information to obtain any evidence for trial.

§ 605: Hearing & Disclosure

Since the derivative use of wiretaps alleged by Ivanov is made illegal by § 605, the question of illegality becomes identical to the question of taint. The wiretap information must be disclosed to the defendant and a hearing must be held to resolve the issue of taint. Alderman v. United States, 394 U.S. 165, 183-85, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969); Nardone v. United States, 308 U.S. 338, 341-42, 84 L. Ed. 307, 60 S. Ct. 266 (1939); United States v. Coplon, supra at 636-40.

Since the decision in Alderman, the Congress has purportedly changed the method for determining taint from government wiretapping. The Organized Crime Control Act of 1970 provides, in relevant part, that taint from surveillances prior to the effective date of the Omnibus Crime Control and Safe Streets Act of 1968 shall be determined by disclosure and hearing only if an in camera proceeding convinces the judge that the surveillances are arguably relevant, 18 U.S.C. § 3504(a) (2) (1970), and that courts shall not consider claims that such surveillances have tainted the evidence of a crime occurring more than five years after the surveillance, 18 U.S.C. § 3504(a) (3) (1970). The bar to consideration of taint is inapplicable here since the relevant wiretaps occurred within two years of the acts sought to be proved,*fn4 allegedly with wiretap fruits. The question is presented, however, whether the 1970 Act's procedure for determining taint governs this case and, if so, whether it is constitutional.

Congress specifically provided that the 1970 Act applies to all proceedings, whenever commenced, after its effective date. Organized Crime Control Act of 1970, ch. 223, 84 Stat. 935, § 703. Congress also clearly intended to alter the procedure set forth in Alderman for determining taint from pre-1968 wiretaps. H.R. Rep. No. 91-1549, in 1970 U.S. Code, Cong. & Ad. News pp. 4007, 4027. The precise question here, however, is whether Congress intended to change the rule of Alderman for the cases actually before the Court and as to evidence introduced, and to which objection was made, before passage of the 1970 Act.

The statute's wording would support restricting use of its procedure for determining taint to cases in which prospective admission of evidence was the subject of controversy; it applies "upon a claim by a party aggrieved that evidence is inadmissible . . . ." 18 U.S.C. § 3504 (a) (1) (1970). Nothing I have found in the legislative history of the 1970 Act indicates that Congress intended the Act to apply to determinations, after its passage, on the propriety of the introduction of evidence before passage of the 1970 Act. While the statute as relevant here does not purport to change the propriety of admission of evidence, but rather changes only the method for determining admissibility, the Alderman Court recognized that the method of ascertaining taint may well determine whether evidence is admitted or excluded. See Alderman v. United States, supra at 183-85.

Not only do I find limitation of the 1970 Act to questions of introduction of evidence after the Act's effective date plausible, but also I find such construction necessary to avoid serious doubt as to the statute's constitutionality. I cannot dismiss United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L. Ed. 519 (1872), as a case dealing solely with the Supreme Court's right to determine the effect of a presidential pardon. Klein involved three questions concerning the effect of Congressional enactments. The first question was the effect of an 1867 statute on the President's pardon powers. Id. at 141-42. The second question was the effect of an 1870 statute on the Supreme Court's jurisdiction. Id. at 143-48. The final question was the effect of the 1870 act's provisions prescribing the evidence that could be relied upon for certain findings and the result required on the basis of other findings. Id. The Court of Claims had, in 1869, rendered a decision in Klein's favor, giving effect to the President's grant of pardon and amnesty and using evidence proscribed by the 1870 act. The Supreme Court held that the 1867 statute did not impair the President's pardon powers, and that the 1870 act neither divested the Supreme Court of jurisdiction acquired before the act's passage nor required the Court to reverse the Court of Claims decision in accordance with the statute's directive regarding the admission and effect of evidence. Id. I believe that Klein is apposite to and casts doubt upon the constitutionality of applying the 1970 Act to Ivanov. Because I feel that the intent of Congress that the 1970 Act apply here is not made clear by the statute's language or history and that the application of the statute to this case might not be constitutional, I would find that the 1970 Act is inapplicable to this proceeding.

II. SCOPE OF SUPREME COURT MANDATE

In suggesting disposition on § 605 grounds, I must comment on a point raised by the government for the first time in its petition for rehearing but not reached by the majority. When this case was before the Supreme Court, the Solicitor General revealed that conversations involving Ivanov had been overheard through wiretaps. The question of a possible § 605 violation was not raised at that time. The Supreme Court thus addressed the matter as if only a potential Fourth Amendment violation were involved. Consequently, in remanding the case to the district court, the Supreme Court directed that "the District Court should confine the evidence presented by both sides to that which is material to the question of the possible violation of a petitioner's Fourth Amendment rights, to the content of conversations illegally overheard which violated those rights and to the relevance of such conversations to the petitioner's subsequent conviction." Alderman v. United States, supra at 186. After arguing before the district court the validity of government action under § 605, the government now urges that only Fourth Amendment questions could be reached on remand consistent with the Supreme Court's mandate.*fn5

The Supreme Court has stated that "while a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues." Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 83 L. Ed. 1184, 59 S. Ct. 777 (1939). Such matters are open unless their "disposition . . . . by the mandate . . . . was necessarily implied in the claim in the original suit, and [the party's failure to raise them constituted] an implied wavier." Id. Since the § 605 issue was not raised prior to the remand, it was not necessarily disposed of by the Supreme Court mandate; and since the possibility of § 605 violation was not known to Ivanov at the time of his petition to the Court, his failure to raise the issue prior to remand cannot be deemed implied waiver. The obvious intent of the Supreme Court in framing its mandate was to limit proceedings on remand to issues connected with the government's wiretapping. The legality of government action under § 605 is certainly such an issue.

Finding that the case should be disposed of on § 605 grounds, I would not reach the Fourth Amendment issues.

Judge Van Dusen joins in this opinion.

Judge Aldisert joins in this opinion except the discussion contained in the section headed "§ 605: Clause 2, Element (1)."

ALDISERT, Circuit Judge, Concurring and Dissenting.

I would reverse the final judgment of conviction and remand these proceedings to the district court for reconsideration. Assuming without conceding a constitutional prerogative of the Chief Executive to intercept, I am persuaded that the strictures of § 605 of the Communications Act of 1934, as interpreted by the Court in Nardone v. United States, 302 U.S. 379, 82 L. Ed. 314, 58 S. Ct. 275 (1937), prevents divulging or publishing the contents of the interception. My view coincides precisely with that taken by the Department of Justice under Attorneys General Tom C. Clark, J. Howard McGrath, Herbert Brownell, Jr., William P. Rogers and Robert F. Kennedy.

I.

Before proceeding into a discussion of this issue in part III, infra, I am constrained to set forth additional observations to present in detail the equally important issue upon which the panel of this court was not divided and upon which there appears to be unanimity in the full court: the district court's holding that the first set of logs, designated as "4001-S*" and "4002-S*" did not taint the conviction. To put these issues in proper perspective I find it necessary to set forth the facts.

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)*fn1a (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. § *fn9512a (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."*fn3a Alderman v. United States, 394 U.S. 165, 186-187, 22 L. Ed. 2d 176, 89 S. Ct. 961 (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] intimate 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 in 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.

Ivanov mounted separate arguments relating to each set of logs. He contended 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 argued that the use of the surveillance evidence from the second set of logs was illegal, contravening Section 605 of the Communications Act of 1934,*fn4a 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, 144 U.S. App. D.C. 147, 445 F.2d 217, 223, cert. denied, 404 U.S. 864, 30 L. Ed. 2d 108, 92 S. Ct. 64 (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, 97 L. Ed. 576, 73 S. Ct. 472 (1953).

II.

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), I believe there is substantial evidence to support this finding.*fn5a

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 ...


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