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UNITED STATES v. BUTENKO Cite as 494 F 2d 593 (1974)
hearing. We conclude that the denial of its requests for discovery resulted in no actual prejudice to Rex.
 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
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
KEY HUMBER SYSTEM
UNITED STATES of America
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.
494 FEDERAL REPORTER, 2d SERIES
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.
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.
UNITED STATES v. BUTENKO Ct -4 F 24 283 (1974)
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
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.
494 FEDERAL REPORTER, 2d SERIES
[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,
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
UNITED STATES v. BUTENKO
16 302 U.S. at 381, 58 S.Ct. at 276.
17. Rogers, The Case for Wire Tapping. 63 Yale L.J. 792, 793 (1954): Brownell, Public Security and Wire Tapping. 39 Cornell L.Q. 193. 197-98 (1954).
605, "no person' comprehends federal agents, and the bar on communication to 'any person' bars testimony to the content of an intercepted message." 16 re-trial, the prosecution attempted to present evidence gathered as a result of the illegal taps instead of testimony as te the actual contents of the overheard conversations. The Court, in Nardone II, ade 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 laced 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." 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 De¡artment's efforts were finally successful with the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, which specifically authorizes any
18 18 U.S.C. §§ 2510-2520.
19 During the period covered by the law review articles referred to in Judge Plusert's dissent, electronic surveillances in the field of foreign affairs were made without prior warrants. Indeed, in the instant case, the Nurveillances were made during the time the
electronic surveillance with prior judicial authorization.1 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.19 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.20 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 21 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. The legislative