hearing. We conclude that the denial of its requests for discovery resulted in no actual prejudice to Rex.

III.

[6] Rex claims that the evidence does not support the Board's findings that it violated Section 8(a)(1). We disagree.

At the hearing, former employee Garrard testified that on January 27, while Plant Manager Ballard was present, Supervisor Greening asked him if anyone had approached him in the building about union activities, and that Ballard had then commented that employee Wade might approach him about the Union. Garrard further stated that on January 28 Greening asked him if he had overheard any more names of ladies involved in union activities or where union meetings were being held, and said that Rex would be faithful to employees who were faithful to Rex. Finally, Garrard testified that on January 31 Greening asked him if he would sign an affidavit that Wade had approached him in the building about union activities. Employee Poole testified that on January 27, Greening asked her what she had learned at the union meeting the night before, and what the union man had said about transfers of employees within the plant. Although Ballard and Greening contradicted the testimony of Garrard and Poole, the Administrative Law Judge credited the testimony of Garrard and Poole over that of Ballard and Greening where there were conflicts, and found that the interrogations were coercive. Such resolutions of the conflicts in testimony were not unreasonable, and were accepted by the Board. Under these circumstances, it is not our function to overturn them. NLRB v. Varo, Inc., 5 Cir. 1970, 425 F.2d 293, 297-298. Accepting as true the testimony of Garrard and Poole, there was sufficient evidence to support the Board's findings.

4. From the testimony of witnesses, and after his own view of the parking lots and motel, the Administrative Law Judge concluded that

494 F.2d-38

593

On the issue of surveillance, the General Counsel introduced evidence that on January 27 Supervisor Greening and her husband sat in their car for at least twenty minutes at a store parking lot across the highway from a motel room where the Union was holding a meeting. Several employees testified that while at the meeting they could discern the Greenings in their car. On January 28, Plant Manager Ballard parked his pickup truck in a lot across from the motel and was observed sitting in the truck by employees attending a union meeting at the motel room. Although the Greenings and Ballard testified that they were not engaged in surveillance, there was sufficient evidence to support a finding of surveillance. See NLRB v. Standard Forge & Axle Co., 5 Cir. 1969, 420 F.2d 508 and cases cited therein.

For the reasons stated, the Board's order is

Enforced.

KEY HUMBER SYSTEM

UNITED STATES of America

V.

John William BUTENKO and Igor A. Ivanov.

Appeal of Igor A. IVANOV. No. 72-1741. United States Court of Appeals, Third Circuit.

Argued March 20, 1973. Reargued en banc Nov. 15, 1973. Decided March 5, 1974. As Amended April 9, 1974.

Defendant was convicted in the United States District Court for the District of New Jersey of conspiring to

each supervisor parked where he could see the room and recognize employees as they entered.

594

transmit to foreign government information relating to national defense of United States. The Court of Appeals for the Third Circuit, 384 F.2d 554, affirmed all except one conviction and certiorari was granted. On motion to modify order of remand on writs of certiorari the Supreme Court of the United States. 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, vacated judgment and remanded case. The United States District Court for the District of New Jersey, Anthony T. Augelli, J., 318 F.Supp. 66, denied application for disclosure of communications and the defendant appealed.

The Court of Appeals, Adams, Circuit Judge, held, inter alia, that there was presidential power to engage in warrantless surveillance to gather foreign intelligence information, that the overhearing of conversations by defendant during surveillance conducted and maintained solely for purpose of gathering foreign intelligence information did not violate defendant's Fourth Amendment rights and that the court did not abuse its discretion in refusing to order disclosure of records of such interceptions or to hold a hearing regarding them.

Affirmed.

Seitz, Chief Judge, filed a concurring and dissenting opinion in which Van Dusen, Circuit Judge, joined and Aldisert, Circuit Judge, joined in part, Aldisert, Circuit Judge, filed a concurring and dissenting opinion in which Van Dusen, Circuit Judge, joined, and Gibbons, Circuit Judge, filed a dissenting in part opinion.

1. Criminal Law 627.6(6)

Necessity of Government's disclosure to defense of records of electronic surveillance, in cases not involving illegal surveillance, depends on likelihood that accurate determinations of particular factual or legal issues in dispute are otherwise unobtainable.

2. Criminal Law 627.6(6)

Apart from ascertaining whether evidence derived from illegal surveil

Statute prohibiting persons from unauthorized interception and divulgence of communications extends to all of divulgences to any person of any surveillance within provision's ambit. U.S.C. A.Const. Amend. 4; Communications Act of 1934, § 605, 47 U.S.C.A. § 605. 5. Telecommunications 495

Where electronic surveillances were conducted and maintained solely for purpose of gathering foreign intelligence information by Government, Communications Act generally prohibiting the unauthorized interception and divulgence of electronic communication does not render them, in and of themselves, accompanied by subsequent disclosure, unlawful. Communications Act of 1934, § 605, 47 U.S.C.A. § 605; U.S.C.A.Const. art. 2, § 2.

595

telligence information, the warrantless receptions, of defendant's conversations were reasonable under Fourth Amendment and the Fourth Amendment rights of defendant were not violated. Communications Act of 1934, § 605, 47 US C.A. § 605; U.S.C.A.Const. Amend. 4. 14. Criminal Law 627.6(1)

Since question confronting trial court as to second set of intercepted conversations of defendant was the legality of the taps and not the existence of tainted evidence, it was within discretion of court to grant or deny defendant's request for a disclosure and the holding of a hearing and exercise of discretion were to be guided by an evaluation of complexity of factors to be considered by court and by likelihood that adversary presentation would substantially promote a more accurate decision. Communications Act of 1934, § 605, 47 U.S.C.A. § 605; U.S.C.A.Const. Amend

4.

15. Criminal Law 627.6(6)

Where defendant, convicted of conspiring to transmit to foreign government information relating to national defense of United States, did not challenge finding of district court that with respect to the second set of intercepted conversations the surveillance was conducted and maintained solely for purpose of gathering foreign intelligence information, court's failure to order disclosure of records and to hold hearing regarding them did not constitute an abuse of discretion. U.S.C.A.Const. Amend. 4; Communications Act of 1934, § 605, 47 U.S.C.A. § 605.

Jonathan L. Goldstein, John J. Barry. Edward J. Dauber, Asst. U. S. Attys.. Newark, N. J., A. William Olson, Asst. Atty. Gen., Robert Keuch, Internal Security Div., Dept. of Justice, Washington, D. C., Herbert J. Stern, U. S. Atty., for appellee.

Edward Bennett Williams, Vincent J. Fuller, Robert L. Weinberg, Williams. Connolly & Califano, Washington, D. C. for appellant.

598

[1,2] The Supreme Court made clear in Taglianetti v. United States10 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,

.

re

Ivanov, and Butenko] quires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance." 11 (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.12

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 decide 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.13 Lastly, if we should hold that this set of surveillances

10. 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969) (per curiam).

11. Id. at 317, 89 S.Ct. at 1100.

12. Note. The Supreme Court, 1968 Term, 83 Harv.L.Rev. 60, 175 (1969).

13. Ivanov contends that the Solicitor General conceded at oral argument before the Supreme Court in Alderman that the second set of interceptions were unconstitutional. See Giordano v. United States, 394 U.S. 310, 313-314 n. 1, 89 S.Ct. 1163, 22 L.Ed.2d 297 (Stewart, J., concurring). Assuming arguendo that Ivanov is correct in this regard, it appears that the Supreme Court refused