United States v. Martin Willard Houltin and Kenneth B. Phillips

WISDOM, Circuit Judge,

dissenting:

I respectfully dissent. The majority opinion at best renders meaningless and at worst overrules, without an en banc hearing, a decision of another panel of this Court, United States v. Houltin, 5 Cir. 1976, 525 F.2d 943 , vacated in part sub nom., Croucher v. United States, 429 U.S. 1034 , 97 S.Ct. 725 , 50 L.Ed.2d 745 , modified 5 Cir. 1977, 553 F.2d 991 (Houltin I). In Houltin I we reversed the convictions of Houltin and Phillips because government agents, both federal and state, violated the fourth amendment by using illegal wiretaps; the *1035 two defendants, unlike their convicted co-conspirators, had standing to challenge the inadmissible evidence. Here, by granting immunity to the four convicted coconspira-tors, who were then in effect compelled to testify to the same evidence excluded in the earlier case, the prosecution erased the holding in Houltin I as to Houltin and Phillips, the two defendants-appellants in this case.

This case does not fall within the recognized exceptions to the exclusionary rule, a rule offensive to one’s sense of justice in many cases, but a rule that makes the fourth amendment meaningful over the long term. First, I cannot accept the majority’s conclusion that the coconspirators’ coerced testimony in this case came from a source independent of an admittedly illegal wiretap. 1 Second, the connection between the evidence introduced and the primary illegality had not become so attenuated as to dissipate the taint. The majority has ignored the purposes of the exclusionary rule and the doctrine of the fruit of the poisonous tree, and has given law enforcement authorities a substantial inducement to use unauthorized wiretaps in future investigations.

The majority does not rely on a per se rule that witness testimony can never be tainted. After the leading case of Wong Sun v. United States, 1968, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 , some decisions supported that view. Smith and Bowden v. United States, D.C. Cir. 1963, 324 F.2d 879 ; Brown v. United States, 1967, 126 U.S.App.D.C. 134 , 143, 375 F.2d 310, 319 (Burger, J., concurring) cert. denied, 1967, 388 U.S. 915 , 87 S.Ct. 2133 , 18 L.Ed.2d 1359 . But a per se approach did not become the law. Instead, witness eases involving live testimony are to be analyzed as any other derivative evidence cases are analyzed. United States v. Marder, 5 Cir. 1973, 474 F.2d 1192, 1196 ; see generally Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A.L.Rev. 32 (1967). 2

Evidence that is fruit of the poisonous tree is excluded, as Justice Holmes, speaking for the Court, said, because the essence of exclusionary rule is not merely “that . evidence so acquired shall not be used before the Court but that it shall not be used at all”. Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319, 321 . The government may avoid the exclusionary rule for derivative evidence if it can show either that the evidence came from an independent source or that the relation of the evidence to the primary illegality is so attenuated that the taint is dissipated. United States v. Castellana, 5 Cir. 1974, 488 F.2d 65 , 67 rev’d on other grounds, 5 Cir., 500 F.2d 325 (en banc.).

*1036 The facts and circumstances of this case do not fit within the independent source exception to the derivative evidence exclusionary rule. Wong Sun established that evidence is not fruit of the poisonous tree simply because it would have been undiscovered but for the primary illegality by the police. Wong Sun did not, however, reject a “but for” inquiry entirely. That inquiry survives as the controlling question for the independent source exception. Ruf-fin, 15 U.C.L.A.L.Rev. at 38. Evidence has an independent source when the prosecution can show it was uncovered in a manner with no connection at all to the primary illegality such as wiretapping. See, e. g., United States v. Villarreal, 5 Cir. 1978, 565 F.2d 932 (Wisdom, J., dissenting); United States v. Castellana, 5 Cir. 1974, 488 F.2d 65 , rev’d on other grounds, 5 Cir. 1974, 550 F.2d 325 (en banc); United States v. Bacall, 9 Cir. 1971, 443 F.2d 1050 , cert. denied, 404 U.S. 1004 , 92 S.Ct. 565 , 30 L.Ed.2d 557 ; Collins v. Beto, 5 Cir. 1965, 348 F.2d 823, 828 .

United States v. Holsey, 10 Cir. 1970, 437 F.2d 250 , a case cited in the majority opinion, serves as an example. In Holsey , the police had illegally searched the 'defendant’s rented house and his automobile. The police found evidence of an automobile purchase by someone using the name Jack Weber which would have advanced their investigation had the police not already known all the facts the evidence revealed. The court refused to hold that testimony by witnesses uncovered by the investigation was tainted. It stressed that “such knowledge obtained by the search gave the F.B.I. Agents no information they did not have before ...” 437 F.2d at 253 . 3 One commentator, who emphasizes the need for special care when law enforcement officials have used unlawful electronic surveillance, believes that the independent source exception should be available in wiretapping cases only when the government can establish “that its agents had utilized that source before gaining knowledge by the unlawful method”. Pitter, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Cal.L.Rev. 579, 645 (1968).

Against this legal background it is clear to me that the independent source rule does not permit use of the testimony of the convicted coconspirator. The government did not have a fruitful source for the evidence before the taps. Although the federal agents knew the identities of all the conspirators, they had been unable to develop a case. Indeed, this inability to prove their case caused the investigators to place the illegal wiretap. Houltin I, 525 F.2d at 947 .

Furthermore, there are several important connections between the primary illegality and the testimony introduced at the second trial. The witnesses had been confronted with the results of the tap; inevitably this influenced the content of their testimony. See generally Pitter, 56 Cal.L.Rev. at 592-93, cf. Grant v. Wainwright, 5 Cir. 1974, 496 F.2d 1043 , 1048 n.5 (repetition may lead witness to believe his own false confession). The prosecution exploited the wiretaps in its grant of immunity to compel the testimony. Only because of the wiretap evidence did the prosecutor have available four witnesses who could be “immunized” without cost. They were already convicted, so an inability to use their testimony against them was meaningless. The government might have convicted Houltin by immunizing Phillips or vice-versa. Either of those grants of immunity, however, would have required paying the usual costs of the immunity procedure. 4 The information from the wiretaps made those convictions possible. Moreover, the information from the wiretaps determined who had standing in Houltin I. This in turn identified the witnesses to be given immunity. Cf. United States v. Marder, 474 F.2d at 1195 ; United *1037 States v. Tane, 2 Cir. 1964, 329 F.2d at 848, 853 (testimony of witness identified through illegal tap is tainted). 5

Because a but-for causal link exists between the unlawful wiretap and the testimony introduced at trial, that evidence could be considered only if it had become so attenuated from the unlawful tap that the taint was dissipated. See Wong Sun v. United States, 371 U.S. at 487-88 , 83 S.Ct. 407 , Nardone v. United States, 308 U.S. at 341 , 60 S.Ct. 266 . The majority believes the evidence is attenuated because the cocon-spirators came forward by their own volition and because they changed from uncooperative defendants to prosecution witnesses.

The majority thus adopts the will and volition approach to tainted witnesses. Attenuation is supplied by the human factor involved when evidence comes from witness testimony. Courts employing this analysis “must determine how great a part the particular manifestation of ‘individual human personality’ played in the ultimate receipt of the testimony in question.” McLindon v. United States, 1964, 117 U.S.App.D.C. 283 , 286, 329 F.2d 238 , 241 n.2. “The point to scrutinize, then, is . between the ears of the witness” Ruffin, 15 U.C.L.A.L. Rev. at 50. This approach has been criticized — in an article Judge Gewin termed “excellent” in United States v. Marder, 474 F.2d at 1196 n.4 — because it is vague, “spurious and unnecessary”, and so manipulable that any decision can be justified. Ruffin, 15 U.C.L.A.L.Rev. at 39, 64. It has, however, been accepted to some extent in this Circuit. See United States v. Marder, 474 F.2d at 1196 .

Even within the framework of the will and volition analysis, I cannot understand how the majority concludes that the testimony below resulted from an independent human decision to testify. The government has the burden of showing the evidence is attenuated. Houltin I, 525 F.2d at 947 . The witnesses did not come forward voluntarily; 6 they were arrested, tried, convicted, and then ordered to testify. They had no choice but to obey that order to give evidence; the alternative was a contempt citation, as their lawyer so advised them.

To negate the obvious coercion to testify — coercion made possible by exploitation of the illegal wiretaps — the majority can only speculate that the co-defendants chose to testify to enhance the possibility that their then-pending Rule 35 motions for a reduction of sentences would be granted. Of course, the co-defendants had sentences to be reduced only because of wiretap evidence. It is just as easy, as the majority concedes, to conclude that their fear that failure to testify would have an adverse impact on the Rule 35 motions increased the coercion on the defendants.

The majority does not cite any support in the record for its theory that attenuation can be found in the exercise of the co-defendants’ own wills, for there is none. To the contrary, in the record the United States Attorney stated “none of the four [witnesses] want to testify but they recognize under the law they have an obligation to do so”. 7 Transcript at p. 28. The trial judge acknowledged that the witnesses “don’t want to testify”. Id. at 33.

The majority’s argument that attenuation is shown because Burke, Morrison, *1038 Francis, and Croucher changed from uncooperative to cooperative parties is similarly contradicted by the United States Attorney’s statement. 8 The four never wanted to cooperate by testifying. Cf. Smith and Bowden v. United States, 1965, 120 U.S.App.D.C. 160 , 344 F.2d 545 in which the court excluded the testimony of a tainted witness who did not change from uncooperative to cooperative, but who was always cooperative. In contrast, in Smith v. United States, cited by the majority, the witness changed his story voluntarily, without coercion of contempt.

As the majority points out by quoting Mr. Justice Holmes, reliance on phrases such as “independent” or “attenuated” can lead to superficial legal analysis. One means of avoiding the danger in a derivative evidence case is also to analyze its facts in light of the policy behind the exclusionary rule of deterring official misconduct. See Note, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136 (1967).

My conclusion that the testimony in the case is tainted is buttressed by an examination of the case from this perspective. Allowing this evidence to be introduced will not deter official misconduct; it will encourage illegal wiretaps. After this decision, a government agent investigating a conspiracy case who could not obtain permission to use a wiretap (or who did not seek permission) could place an unlawful tap on one conspirator’s telephone, wait until he overheard an incriminating call to which at least one conspirator lacked standing to attack, and use the call to convict that defendant. After the conviction, that defendant would be granted immunity. He would then be forced to testify against the other conspirators. The wiretap in this case was unlawful only because the investigator failed to comply with a technical requirement of 18 U.S.C. 2516(2). 9 Nothing in the majority opinion, however, restricts the loophole to good faith misconduct.

The majority ignores this difficulty. Instead, it states its reluctance to extend the exclusionary rule. To my mind, to exclude the testimony in this case would not extend the exclusionary rule, but apply it in exactly the situation the Supreme Court has said exclusion is appropriate: when necessary to control official unlawfulness. See Stone v. Powell, 1976, 428 U.S. 465 , 96 S.Ct. 3037, 3047-49 , 49 L.Ed.2d 1067 . That no court has ever excluded evidence in a comparable fact situation does not mean a decision to exclude would extend the exclusionary rule. It probably means that no prosecutor has ever dared to attempt to use the procedure sanctioned by the Court today.

Finally, I am concerned that two of three judges on the panel in this case, in effect, eradicate the holding of this Court in Houl-tin I —with respect to Houltin and Phillips. In Houltin I this Court held that Houltin and Phillips had standing to challenge the unlawful taps, and reversed their convictions. That standing is now an empty privilege. The majority here holds that a defendant with standing against the primary illegality can do nothing when the government exploits the tainted evidence not only to convict defendants without standing but to convict the defendant with standing by compelling those without standing to testify. There is no longer any reason for a member of a conspiracy to exercise his right as an individual citizen to protest an unlawful wiretap — unless all members of the conspiracy share his standing.

Houltin and Phillips may be guilty. Ringleaders in a criminal conspiracy have a way of interposing layers of less important conspirators between the criminal offense and the hard proof of the ringleaders’ guilt. See Houltin I, 525 F.2d at 951-52 . But there is no legitimate evidence here that is admissible against the defendants.

It is indisputably a policy of our society that criminals be speedily apprehended *1039 and justly convicted. But in pursuing this aim we must sedulously avoid prejudicing other, and higher goals. One such goal is certainly a cutting down of the incidence of unlawful conduct against private persons by public officials.

Collins v. Beto, 348 F.2d at 831 . The testimony of Burke, Morrison, Francis, and Croucher was tainted by the wiretap.

The “exclusion of relevant criminal evidence is a high price to pay for judicial enforcement of the fourth amendment.” 10 But the admission into evidence of the products of unconstitutional searches (wiretaps) as a means of convicting once-tried defendants whom the prosecutor considers should be retried and convicted can only induce official unconstitutional searches. I would reverse.

. The government did not contest on appeal the district court’s ruling that a wiretap of a conversation between Houltin and his wife and another between Mrs. Houltin and Mrs. Phillips were unlawful. United States v. Houltin, 5 Cir. 1976, 525 F.2d 943, 945 .

. The majority points to the advice in Williams v. United States, 5 Cir. 1967, 382 F.2d 48 , 51 that “the significance of the nexus between an illegal search and challenged evidence is one of common sense . . . ” This is sound advice, but it can be misunderstood. In derivative evidence cases it is not unusual for the defendant’s counsel to offer sophisticated argument to show a causal connection between information obtained through illicit wiretapping and the government’s proof; and, of course, appellate courts should scrutinize such arguments. Nardone v. United States, 1939, 308 U.S. 338, 341 , 60 S.Ct. 266 , 84 L.Ed. 307 . “Common sense”, if it has judicial acceptance in this context, may cut through a lawyer’s quiddities to show that a connection is less significant than the lawyer asserts. Id. But what seems “common sense” to individual judges cannot be used as a substitute for accepted standards, rules, policies, and principles. It is certainly no substitute for consideration or analysis of the logical relationship between evidence obtained by an illegal wiretap and the exploitation of the evidence to convict defendants. In the context of this and similar cases, “common sense” should serve as a check on the specious reasoning defendants’ imaginative counsel devise for sophistical causation, not as the primary basis for decision. Otherwise, the fate of a criminal defendant varies with the vagaries of the judges who happen to review his case. Cf. Adamson v. California, 1947, 332 U.S. 46, 68 , 67 S.Ct. 1672 , 91 L.Ed. 1903 (Black, J., dissenting) (warning of the danger of allowing judges to substitute their own concepts of decency and fundamental justice for the language of the Bill of Rights).

. United States v. Marder, 5 Cir. 1973, 474 F.2d 1192 , the other case cited by the majority, states the independent source exception but did not admit any evidence because of it.

. The government might also have immunized Burke, Morrison, Francis, and Croucher before the first trial. That course, however, also might have kept some of the conspirators out of jail.

. Houltin and Phillips do not have standing to complain for their coconspirators that the immunity grants were improper. They do have standing, however, to protest any use of the illegal wiretaps which leads to evidence against them, including use of the wiretaps to create the possibility of meaningless immunity and compelled testimony.

. The majority sees a distinction between “volunteered” testimony and “voluntary” testimony. The editors of Webster’s Third International Dictionary would not agree. Their definition of “volunteer” is “to offer or bestow voluntarily or without solicitation or compulsion”. (Emphasis added.)

. Webster’s Third International Dictionary defines “voluntary” as “proceeding from the will: produced in or by an act of choice . acting or done without any present legal obligation to do the thing done or any such obligation to do the thing done or any such obligation that can accrue from the existing state of affairs”. (Emphasis added.)

. Even if the attitude of the witnesses had changed, I do not believe this would prove that the evidence was so attenuated as to dissipate the taint of the wiretap. See Ruffin, 15 U.C.L. A.L.Rev. at 54-55.

. See footnote 1 of the majority opinion.

. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 433 (1974).